Jia v. Canada (Minister of Citizenship and Immigration), (2014) 457 F.T.R. 73 (FC)

JudgeGleason, J.
CourtFederal Court (Canada)
Case DateJune 04, 2014
JurisdictionCanada (Federal)
Citations(2014), 457 F.T.R. 73 (FC);2014 FC 596

Jia v. Can. (M.C.I.) (2014), 457 F.T.R. 73 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. JN.042

Baoxian Jia (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2621-13; 2014 FC 596; 2014 CF 596)

Indexed As: Jia v. Canada (Minister of Citizenship and Immigration)

Federal Court

Gleason, J.

June 23, 2014.

Summary:

In 2014, individuals who sought to immigrate to Canada in the investor class applied for mandamus to compel the Minister of Citizenship and Immigration to process their applications which had been filed between 2008 and 2010. They also sought Charter relief because of the delay in processing the applications.

The Federal Court dismissed the applications, but certified two related questions for appellate consideration.

Administrative Law - Topic 2158

Natural justice - Administrative decisions or findings - Delay - [See second Administrative Law - Topic 3503 ].

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - In 2014, numerous individuals, who filed applications between 2008 and 2010 to immigrate to Canada in the investor class and had never had their applications processed, applied for Charter relief - They argued that the Minister of Citizenship and Immigration's delay in processing their applications was contrary to their legitimate expectations in violation of s. 7 of the Charter (i.e., contrary to the guarantee of procedural fairness) - The Federal Court held that there were no such expectations that were violated and, therefore, this argument failed - See paragraphs 100 to 102 and 111.

Administrative Law - Topic 3503

Judicial review - Mandamus - When available - The Federal Court discussed the test applicable for determining when an award of mandamus was appropriate - See paragraphs 67 to 69.

Administrative Law - Topic 3503

Judicial review - Mandamus - When available - In 2014, individuals who sought to immigrate to Canada in the investor class applied for mandamus to compel the processing of their applications which were filed between 2008 and 2010 and had not been processed - They claimed that the Minister of Citizenship and Immigration (MCI) had a duty to process applications on a first come first served basis (i.e., should not have changed to concurrent processing of old and new applications while their applications were outstanding) and should have substantially increased the number of applications processed each year - The Federal Court refused to grant mandamus - The MCI had the right to set quotas per immigrant class and to change processing priorities - The extent of the duty owed by the MCI in this case was to process the applications within a reasonable period of time - Here, the delay was not unreasonable given the volume of applications received and the priorities and targets set by the MCI under the Immigration and Refugee Protection Act - It would be inequitable to grant mandamus in this case - See paragraphs 70 to 104.

Administrative Law - Topic 3551

Judicial review - Mandamus - Conditions precedent - [See first Administrative Law - Topic 3503 ].

Administrative Law - Topic 3553

Judicial review - Mandamus - Conditions precedent - Existence of duty - [See second Administrative Law - Topic 3503 ].

Administrative Law - Topic 3705

Judicial review - Mandamus - Mandamus to government and executive - Ministers of the Crown - [See second Administrative Law - Topic 3503 ].

Aliens - Topic 24

Definitions and general principles - Minister of Citizenship and Immigration - Duty of - [See second Administrative Law - Topic 3503 ].

Aliens - Topic 1213

Admission - Immigrants - Entrepreneurs and investors (incl. Immigrant Investor Program) - In 2014, numerous individuals, who filed applications between 2008 and 2010 to immigrate to Canada in the investor class and had never had their applications processed, applied for Charter relief because of delay (ss. 7 and 15) - The Minister of Citizenship and Immigration argued that as non-citizens situated outside Canada, the applicants possessed no rights under the Charter and that their claims should accordingly be dismissed on a preliminary basis - The Federal Court held that it did not have to decide whether the Charter extended rights to the individual applicants, because even if they possessed such rights, none were violated in the treatment of their visa applications - See paragraphs 105 to 110.

Aliens - Topic 1213

Admission - Immigrants - Entrepreneurs and investors (incl. Immigrant Investor Program) - In 2014, numerous individuals, who filed applications between 2008 and 2010 to immigrate to Canada in the investor class and had never had their applications processed, applied for Charter relief - They argued that the Minister of Citizenship and Immigration's delay in processing their applications violated their rights under s. 7 of the Charter - The Federal Court held that the s. 7 argument failed because the applicants had no interest that fell within the scope of protection under s. 7 of the Charter - The interest at play did not fall within the ambit of "life, liberty or security" such as to be protected by the Charter - There was no s. 7 interest engaged - There was no violation of s. 7 in these cases - See paragraphs 111 to 118.

Aliens - Topic 1213

Admission - Immigrants - Entrepreneurs and investors (incl. Immigrant Investor Program) - In 2014, numerous individuals, who filed applications between 2008 and 2010 to immigrate to Canada in the investor class and had never had their applications processed, applied for Charter relief - They argued that the Minister of Citizenship and Immigration's delay in processing their applications violated their rights under s. 15 (i.e., they suffered differential treatment based on their intended destinations in Canada because they were subject to longer queues and less favourable treatment than investor immigrants who chose to settle in Quebec) - The Federal Court held that, even assuming that this was the case, that differential treatment did not give rise to a violation of s. 15 because the location where an immigrant sought to settle was not an analogous ground within the meaning of s. 15 - No s. 15 rights were violated in these cases - See paragraphs 119 to 127.

Aliens - Topic 1213

Admission - Immigrants - Entrepreneurs and investors (incl. Immigrant Investor Program) - In 2014, numerous individuals, who filed applications between 2008 and 2010 to immigrate to Canada in the investor class and had never had their applications processed, applied for Charter relief - They argued that the treatment they were afforded violated their right to equality under the rule of law (i.e., under unwritten constitutional principles) - The Federal Court held that this claim had no merit - The only basis for an equality claim that sought to set aside legislation rested in s. 15 of the Charter - See paragraphs 128 to 130.

Aliens - Topic 1213

Admission - Immigrants - Entrepreneurs and investors (incl. Immigrant Investor Program) - In 2014, numerous individuals, who filed applications between 2008 and 2010 to immigrate to Canada in the investor class and had never had their applications processed by the Minister of Citizenship and Immigration (MCI), applied for Charter relief - They argued that the preference afforded to those who applied under the Quebec Investor Program violated the principles of federalism - The Federal Court held that this claim had no merit - "This argument has no basis as it is axiomatic that different benefits may well accrue under federal legislation to different areas of the country. Indeed, much federal legislation is designed to specifically effect just such a result ... Thus, there has been no violation of the so-called 'federalism principle' by the respondent [MCI] in this case" - See paragraph 131.

Aliens - Topic 1213

Admission - Immigrants - Entrepreneurs and investors (incl. Immigrant Investor Program) - [See Administrative Law - Topic 2267 and second Administrative Law - Topic 3503 ].

Aliens - Topic 1234

Admission - Immigrants - Application for admission - Delays - [See second Administrative Law - Topic 3503 and first Aliens - Topic 1213 ].

Civil Rights - Topic 1001.1

Discrimination - Immigration - Immigrants (incl. permanent residence applications, humanitarian and compassionate considerations, etc.) - [See third Aliens - Topic 1213 ].

Civil Rights - Topic 3106

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Procedural fairness - Scope of - [See Administrative Law - Topic 2267 ].

Civil Rights - Topic 3191

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Delay - [See first and second Aliens - Topic 1213 ].

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - General - Application of - Persons protected - [See first Aliens - Topic 1213 ].

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - [See first Aliens - Topic 1213 ].

Civil Rights - Topic 8380

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Status or standing - [See first Aliens - Topic 1213 ].

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - [See second Aliens - Topic 1213 ].

Civil Rights - Topic 8552

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Rule of law - [See fourth Aliens - Topic 1213 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See first Aliens - Topic 1213 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous categories - [See third Aliens - Topic 1213 ].

Constitutional Law - Topic 5.1

General principles - Unwritten constitutional principles - Federalism - [See fifth Aliens - Topic 1213 ].

Constitutional Law - Topic 5.3

General principles - Unwritten constitutional principles - Constitutionalism and the rule of law - [See fourth Aliens - Topic 1213 ].

Courts - Topic 12

Stare decisis - Authority of judicial decisions - General principles - Refusal to grant leave to appeal - Effect of - The applicants in this case argued that s. 7 of the Charter applied to their situation relying on Wilson v. British Columbia Medical Services Commission (BCCA 1989) - The Federal Court held that Wilson did not support the applicants' argument - "In the first place, it has not been followed by the Supreme Court of Canada in its jurisprudence, defining the breadth of rights protected under section 7 of the Charter, and, indeed, is out of step with that jurisprudence. The fact that the Supreme Court refused leave in Wilson (even with a panel of five) does not elevate this case to the level of a decision of the Supreme Court, as a refusal of leave cannot be viewed as an endorsement of the reasoning in the decision of the court below" - See paragraphs 115.

Cases Noticed:

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), refd to. [para. 67].

Conille v. Canada (Ministre de la Citoyenneté et de l'Immigration), [1999] 2 F.C. 33; 159 F.T.R. 215 (T.D.), refd to. [para. 69].

Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189; 227 F.T.R. 272; 2003 FCT 211, dist. [para. 69].

Vaziri v. Canada (Minister of Citizenship and Immigration) (2006), 300 F.T.R. 158; 2006 FC 1159, refd to. [para. 69].

Liang v. Canada (Minister of Citizenship and Immigration) (2012), 413 F.T.R. 145; 2012 FC 758, dist. [para. 69].

Agama v. Canada (Minister of Citizenship and Immigration) (2013), 427 F.T.R. 127; 2013 FC 135, refd to. [para. 69].

He v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 30; 2014 FC 92, refd to. [para. 69].

Zhang v. Canada (Minister of Citizenship and Immigration) (2014), 447 F.T.R. 96; 2014 FC 93, refd to. [para. 69].

Fang v. Canada (Minister of Citizenship and Immigration) (2014), 446 F.T.R. 310; 2014 FC 94, refd to. [para. 69].

Jiang v. Canada (Minister of Citizenship and Immigration) (2014), 447 F.T.R. 108; 2014 FC 95, refd to. [para. 69].

Kearney v. Canada (Minister of Citizenship and Immigration, [2014] F.T.R. Uned. 160; 2014 FC 96, refd to. [para. 69].

Wurm v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 161; 2014 FC 97, refd to. [para. 69].

Mazarei v. Canada (Minister of Citizenship and Immigration) (2013), 452 F.T.R. 119; 2014 FC 322, refd to. [para. 69].

Mobasher v. Canada (Minister of Citizenship and Immigration) (2014), 453 F.T.R. 280; 2014 FC 399, refd to. [para. 69].

Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 539; 339 N.R. 1; 2005 SCC 51, refd to. [para. 76].

Esteban v. Canada (Minister of Citizenship and Immigration) - see Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration).

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 76].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [para. 93].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 100].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 100].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 106].

Khadr v. Canada (Minister of Justice) et al., [2008] 2 S.C.R. 125; 375 N.R. 47; 2008 SCC 28, refd to. [para. 106].

Tabingo v. Canada (Minister of Citizenship and Immigration) (2013), 431 F.T.R. 118; 2013 FC 377, refd to. [para. 106].

Zeng v. Canada (Attorney General) (2013), 426 F.T.R. 117; 2013 FC 104, refd to. [para. 106].

Kinsel v. Canada (Minister of Citizenship and Immigration) (2012), 423 F.T.R. 299; 2012 FC 1515, refd to. [para. 106].

Toronto Coalition to Stop the War et al. v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2010), 374 F.T.R. 177; 2010 FC 957, refd to. [para. 106].

Slahi v. Canada (Minister of Justice) et al. (2009), 340 F.T.R. 236; 2009 FC 160, refd to. [para. 106].

Amnesty International Canada et al. v. Canadian Armed Forces (Chief, Defence Staff) et al., [2008] 4 F.C.R. 546; 320 F.T.R. 257; 2008 FC 336, refd to. [para. 106].

Ontario (Attorney General) v. Winner, [1951] S.C.R. 887, refd to. [para. 107].

Winner v. SMT (Eastern Ltd.) - see Ontario (Attorney General) v. Winner.

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 107].

Canadian Council of Churches v. Canada et al., [1990] 2 F.C. 534; 106 N.R. 61 (F.C.A.), refd to. [para. 108].

Ruparel v. Minister of Employment and Immigration et al., [1990] 3 F.C. 615; 36 F.T.R. 140 (T.D.), refd to. [para. 108].

Lee v. Canada (Minister of Citizenship and Immigration) et al. (1997), 126 F.T.R. 229; 37 Imm. L.R.(2d) 278 (T.D.), refd to. [para. 108].

Deol v. Canada (Minister of Citizenship and Immigration) (2001), 211 F.T.R. 12; 2001 FCT 694, refd to. [para. 108].

Bedford et al. v. Canada (Attorney General) (2013), 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 113].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 113].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, dist. [para. 114].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, dist. [para. 114].

Chaoulli v. Quebec (Attorney General) (2005), 335 N.R. 25; 2005 SCC 35, dist. [para. 114].

Wilson v. Medical Services Commission of British Columbia, [1989] 2 W.W.R. 1 (B.C.C.A.), not folld. [para. 115].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 121].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 121].

Gosselin v. Quebec (Procureur général) (2002), 298 N.R. 1; 2002 SCC 84, refd to. [para. 121].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 121].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 121].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2009] 1 S.C.R. 222; 384 N.R. 203; 2009 SCC 9, refd to. [para. 121].

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 121].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 123].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 125].

Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2014), 459 N.R. 367; 2014 FCA 113, refd to. [para. 138].

Boni v. Canada (Minister of Citizenship and Immigration) (2006), 357 N.R. 326; 2006 FCA 68, refd to. [para. 138].

Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365; 2004 FCA 89, refd to. [para. 138].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4; 51 A.C.W.S.(3d) 910 (F.C.A.), refd to. [para. 138].

Di Bianca v. Canada (Minister of Citizenship and Immigration) (2002), 224 F.T.R. 168; 2002 FCT 935, refd to. [para. 138].

Statutes Noticed:

Budget Implementation Act, S.C. 2008, c. 28, sect. 120 [para. 27].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 112].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 87.3 [para. 26]; sect. 87.32 [para. 30].

Counsel:

Rocco Galati and Timothy Leahy, for the applicants;

Lorne McClenaghan and Daniel Engel, for the respondent.

Solicitors of Record:

Rocco Galati, Toronto, Ontario, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard in Toronto, Ontario, on June 4, 2014, before Gleason, J., of the Federal Court, who delivered the following decision on June 23, 2014.

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10 practice notes
  • Jia c. Canada (Citoyenneté et Immigration),
    • Canada
    • Federal Court (Canada)
    • June 23, 2014
    ...3 R.C.F. JIA c. CANADA 143IMM-2621- 132014 FC 596Baoxian Jia (Applicant)v.Minister of Citizenship and Immigration (Respondent)indexed as: Jia v. Canada (Citizenship and immigration)Federal Court, Gleason J. — Toronto, June 4; Ottawa, June 23, 2014.Citizenship and Immigration —......
  • Cabral v. Canada (Citizenship and Immigration), 2018 FCA 4
    • Canada
    • Court of Appeal (Canada)
    • January 11, 2018
    ...Canada (Citizenship and Immigration), 2014 FCA 191 at paras. 46, 66-67, [2015] 3 F.C.R. 346; Jia v. Canada (Citizenship and Immigration), 2014 FC 596 at para. 29, [2015] 3 F.C.R. 143; appeal dismissed 2015 FCA 146; Liang v. Canada (Minister of Citizenship and Immigration), 2012 FC 758 at pa......
  • Carrero v. Canada (Citizenshp and Immigration),
    • Canada
    • Federal Court (Canada)
    • August 27, 2021
    ...also, Mazarei v. Canada (Citizenship and Immigration), 2014 FC 322, [2014] F.C.J. No. 338; Jia v. Canada (Citizenship and Immigration), 2014 FC 596, [2015] 3 FCR 143; Kun v. Canada (Citizenship and Immigration), 2014 FC 90, [2014] F.C.J. No. 81, where delays of 4, 5 and 7 years, respectivel......
  • Dhillon v. Canada (Citizenship and Immigration), 2019 FC 391
    • Canada
    • Federal Court (Canada)
    • April 1, 2019
    ...Canada (Citizenship and Immigration), 2014 FCA 191 at paras. 46, 66-67, [2015] 3 F.C.R. 346; Jia v. Canada (Citizenship and Immigration), 2014 FC 596 at para. 29, [2015] 3 F.C.R. 143; appeal dismissed 2015 FCA 146; Liang v. Canada (Minister of Citizenship and Immigration), 2012 FC 758 at pa......
  • Request a trial to view additional results
10 cases
  • Jia c. Canada (Citoyenneté et Immigration),
    • Canada
    • Federal Court (Canada)
    • June 23, 2014
    ...3 R.C.F. JIA c. CANADA 143IMM-2621- 132014 FC 596Baoxian Jia (Applicant)v.Minister of Citizenship and Immigration (Respondent)indexed as: Jia v. Canada (Citizenship and immigration)Federal Court, Gleason J. — Toronto, June 4; Ottawa, June 23, 2014.Citizenship and Immigration —......
  • Cabral v. Canada (Citizenship and Immigration), 2018 FCA 4
    • Canada
    • Court of Appeal (Canada)
    • January 11, 2018
    ...Canada (Citizenship and Immigration), 2014 FCA 191 at paras. 46, 66-67, [2015] 3 F.C.R. 346; Jia v. Canada (Citizenship and Immigration), 2014 FC 596 at para. 29, [2015] 3 F.C.R. 143; appeal dismissed 2015 FCA 146; Liang v. Canada (Minister of Citizenship and Immigration), 2012 FC 758 at pa......
  • Carrero v. Canada (Citizenshp and Immigration),
    • Canada
    • Federal Court (Canada)
    • August 27, 2021
    ...also, Mazarei v. Canada (Citizenship and Immigration), 2014 FC 322, [2014] F.C.J. No. 338; Jia v. Canada (Citizenship and Immigration), 2014 FC 596, [2015] 3 FCR 143; Kun v. Canada (Citizenship and Immigration), 2014 FC 90, [2014] F.C.J. No. 81, where delays of 4, 5 and 7 years, respectivel......
  • Dhillon v. Canada (Citizenship and Immigration), 2019 FC 391
    • Canada
    • Federal Court (Canada)
    • April 1, 2019
    ...Canada (Citizenship and Immigration), 2014 FCA 191 at paras. 46, 66-67, [2015] 3 F.C.R. 346; Jia v. Canada (Citizenship and Immigration), 2014 FC 596 at para. 29, [2015] 3 F.C.R. 143; appeal dismissed 2015 FCA 146; Liang v. Canada (Minister of Citizenship and Immigration), 2012 FC 758 at pa......
  • Request a trial to view additional results

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