Liang v. Canada (Minister of Citizenship and Immigration), (2012) 413 F.T.R. 145 (FC)

JudgeRennie, J.
CourtFederal Court (Canada)
Case DateJune 05, 2012
JurisdictionCanada (Federal)
Citations(2012), 413 F.T.R. 145 (FC);2012 FC 758

Liang v. Can. (M.C.I.) (2012), 413 F.T.R. 145 (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: [2012] F.T.R. TBEd. JN.086

Dong Liang (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-9634-11)

Phool Maya Gurung v. The Minister of Citizenship and Immigration (respondent)

(IMM-137-12; 2012 FC 758; 2012 CF 758)

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

Federal Court

Rennie, J.

June 14, 2012.

Summary:

The applicants sought orders of mandamus compelling the Minister of Citizenship and Immigration (MCI) to process their applications for permanent residence under the federal skilled worker (FSW) class. The applications at issue were selected through a case management process as representative cases for two groups of applicants whose FSW applications had not been processed to completion. Applicant Liang represented 671 applicants who submitted their applications before February 27, 2008, when amendments to the Immigration and Refugee Protection Act were enacted through the Budget Implementation Act (2008) or Bill-C-50 (pre-C-50 applications). Applicant Gurung represented 154 applicants who submitted their applications between February 27, 2008 and June 26, 2010, a period of time during which eligibility for a FSW visa was governed by a set of Ministerial Instructions (MI1 applications). Both applicants claimed that the MCI had unreasonably delayed processing their applications by choosing to accord higher priority to applications submitted more recently and according to different criteria.

The Federal Court allowed Liang's application for mandamus because of the delay in his case. With respect to the 670 other pre-C-50 applicants, the court had no evidence before it with respect to the factors unique to each particular application which might account for the delay. Part or all of the delay could be attributable to the conduct of the applicant or a third party over whom the government had no control. Thus, each case would have to be determined on a case-by-case basis, and with the exception of Liang, the court made no finding save that in respect of the remaining pre-C-50 applicants, a prima facie case of delay was established and the Ministerial Instructions, in light of s. 120 of the Budget Implementation Act, 2008, did not constitute a satisfactory justification for that delay. As to Gurung, there was evidence that her application was currently being actively processed and there was thus no purpose to be served by an order for mandamus. Gurung's application was dismissed. As to the other 153 applicants represented by Gurung, their cases would turn on their own individual facts. However, the court stated that where the Minister established a policy to process the MI1 applications within 6-12 months, the actual delay (ranging from 24-52 months) was prima facie longer than that which might reasonably have been expected to have arisen. Furthermore, the Minister's authority to set policy was not, in these circumstances itself a satisfactory justification for the delay.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See third Aliens - Topic 1230.4 ].

Administrative Law - Topic 3705

Judicial review - Mandamus - Mandamus to government and executive - Ministers of the Crown - [See first and second Aliens - Topic 1230.4 ].

Aliens - Topic 1230.4

Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers - In 2012, the applicant (Liang), representing 671 applicants, sought mandamus compelling the immigration Minister (MCI) to process their permanent residence applications under the federal skilled worker class - The applications were submitted before February 27, 2008, when amendments to the Immigration and Refugee Protection Act (IRPA) were enacted through the Budget Implementation Act (2008) or Bill-C-50 (pre-C-50 applications) - The applicants argued that the MCI had unreasonably delayed processing their applications (between 4.5 and nine years) by implementing Ministerial Instructions under the amended IRPA which accorded higher priority to and applied different criteria to applications submitted more recently - The Federal Court granted Liang's application for mandamus because of delay, but held that the other applications would have to be determined on a case-by-case basis - However, with respect to the remaining pre-C-50 applicants, a prima facie case of delay was established and the Ministerial Instructions did not constitute a satisfactory justification for that delay - See paragraphs 1 to 49.

Aliens - Topic 1230.4

Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers - The applicant (Gurung), representing 154 applicants, sought mandamus compelling the immigration Minister (MCI) to process their permanent residence applications under the federal skilled worker (FSW) class - The applications were submitted between February 27, 2008 and June 26, 2010, when the eligibility for a FSW visa was governed by a set of Ministerial Instructions (MI1), including a policy of processing applications within 6-12 months - The applicants claimed that the MCI had unreasonably delayed processing their applications (between 24-52 months) by according higher priority and imposing different criteria on more recent applications - The Federal Court held that mandamus was unnecessary as Gurung's application was being actively processed - The other applicants cases, however, turned on their own individual facts - The court opined that because the Minister established a policy whereby those applications would be prioritized and processed within 6-12 months, the longer processing time constituted a prima facie case of delay - Furthermore, the Minister's authority to set policy was not, in these circumstances, itself a satisfactory justification for the delay - See paragraphs 1 to 52.

Aliens - Topic 1230.4

Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers - The applicants sought mandamus compelling the immigration Minister (MCI) to process their permanent residence applications under the federal skilled worker (FSW) class - The applicants claimed that the MCI had unreasonably delayed processing their applications by according higher priority and imposing different criteria on more recent applications - The applicants argued that they had a legitimate expectation that their applications would be processed on a first-in, first-out (FIFO) basis - The Federal Court rejected the applicants' argument - There was nothing in the Immigration and Refugee Protection Act or the case law supporting a requirement of FIFO processing as a matter of procedural fairness - See paragraphs 53 to 55.

Cases Noticed:

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. l; 95 A.P.R. 1, refd to. [para. 22].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 22].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), affd. [1994] 3 S.C.R. 1100; 176 N.R. 1, refd to. [para. 24].

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. 24].

Vaziri v. Canada (Minister of Citizenship and Immigration)  (2006),  300 F.T.R. 158; 2006 FC 1159, refd to. [para. 24].

Li v. Canada (Minister of Citizenship and Immigration) (2011), 420 N.R. 30; 2011 FCA 110, refd to. [para. 41].

Shapovalov v. Canada (Minister of Citizenship and Immigration) (2005), 276 F.T.R. 66; 2005 FC 753, refd to. [para. 56].

Subaharan v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 891; 2008 FC 1228, refd to. [para. 57].

Ndungu v. Canada (Minister of Citizenship and Immigration) (2011), 423 N.R. 228; 2008 FCA 208, refd to. [para. 57].

Statutes Noticed:

Budget Implementation Act, S.C. 2008, c. 28, sect. 120 [para. 6].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 87.3 [para. 5].

Counsel:

Timothy E. Leahy, for the applicant;

Angela Marinos, Alison Engel-Yan and Jane Stewart, for the respondent.

Solicitors of Record:

Forefront Migration Ltd., Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard in Toronto, Ontario, on June 5, 2012, before Rennie, J., of the Federal Court, who delivered the following decision in Ottawa, Ontario, on June 14, 2012.

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    ...v. Canada (Minister of Citizenship and Immigration), 2003 FCT 211 , [2003] 4 F.C. 189 ; Liang v. Canada (Citizenship and Immigration), 2012 FC 758, [2014] 1 F.C.R. 352 ; R. v. Morgentaler, [1988] 1 S.C.R. 30, (1988), 44 D.L.R. (4th) 385 ; Rodriguez v. British Columbia (Attorney General)......
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    ...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. Agama v. Canada (Minister of Citizenship and Immigration) (2013), 427 F.T.R. 127 ; 2013 FC 135 , refd t......
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    ...Immigration) (2012), 424 F.T.R. 40 ; 2012 FC 1522 , refd to. [para. 22]. Liang v. Canada (Minister of Citizenship and Immigration) (2012), 413 F.T.R. 145; 2012 FC 758 , refd to. [para. Esensoy v. Canada (Minister of Citizenship and Immigration) (2012), 421 F.T.R. 187 ; 2012 FC 1343 , r......
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26 cases
  • Jia c. Canada (Citoyenneté et Immigration),
    • Canada
    • Federal Court (Canada)
    • June 23, 2014
    ...v. Canada (Minister of Citizenship and Immigration), 2003 FCT 211 , [2003] 4 F.C. 189 ; Liang v. Canada (Citizenship and Immigration), 2012 FC 758, [2014] 1 F.C.R. 352 ; R. v. Morgentaler, [1988] 1 S.C.R. 30, (1988), 44 D.L.R. (4th) 385 ; Rodriguez v. British Columbia (Attorney General)......
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    ...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. Agama v. Canada (Minister of Citizenship and Immigration) (2013), 427 F.T.R. 127 ; 2013 FC 135 , refd t......
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    ...504; Kaur Gill v. Canada (Citizenship and Immigration), 2012 FC 1522, [2014] 2 F.C.R. 441; Liang v. Canada (Citizenship and Immigration), 2012 FC 758, [2014] 1 F.C.R. 352; Hamid v. Canada (Minister of Citizenship and Immigration), 2006 FCA 217, [2007] 2 F.C.R. 152; Salahova v. Canada (Citiz......
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    ...Immigration) (2012), 424 F.T.R. 40 ; 2012 FC 1522 , refd to. [para. 22]. Liang v. Canada (Minister of Citizenship and Immigration) (2012), 413 F.T.R. 145; 2012 FC 758 , refd to. [para. Esensoy v. Canada (Minister of Citizenship and Immigration) (2012), 421 F.T.R. 187 ; 2012 FC 1343 , r......
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