Liu v. Canada (Minister of Citizenship and Immigration), (2014) 446 F.T.R. 51 (FC)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Phelan, J.
• Citation: (2014), 446 F.T.R. 51 (FC),2014 FC 42
• Date: 14 November 2013

Liu v. Can. (M.C.I.) (2014), 446 F.T.R. 51 (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. JA.021

Li Kang Liu (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3431-13; 2014 FC 42; 2014 CF 42)

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

Federal Court

Phelan, J.

January 15, 2014.

Summary:

The applicant applied for judicial review by way of mandamus concerning his application for a visa under the Federal Skilled Worker class. The visa application was deemed terminated by retrospective legislation set out in s. 87.4 of the Immigration and Refugee Protection Act. The applicant claimed that he had received a positive selection decision (that he qualified in respect of his occupation) and that he was entitled to a visa.

The Federal Court dismissed the application.

Administrative Law - Topic 2267

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

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - [See Aliens - Topic 1230.4 ].

Aliens - Topic 1230.4

Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers - The applicant's application for a visa under the Federal Skilled Worker (FSW) class was deemed terminated by s. 87.4 of the Immigration and Refugee Protection Act, which came into effect on June 29, 2012 - Section 87.4(1) provided that an application for a permanent resident visa as a member of the FSW class that was made before February 27, 2008 "is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class" - The applicant applied for mandamus - He claimed that he had received a positive selection decision (that he qualified in respect of his occupation) on June 21, 2012 and that he was entitled to a visa - The Federal Court dismissed the application - A selection decision was not sufficient to meet the statutory requirements to prevent termination of the visa process - Compliance with all requirements applicable to the FSW class had to be met - Those requirements were not met on either March 29, 2012 or June 29, 2012 - Section 87.4 was clearly intended to have retrospective effect - There was no breach of procedural fairness - There were delays in the processing of FSW applications while the Minister determined how to proceed with pending applications - However, the applicant had not established that "but for" those delays, all aspects of his visa application would have been completed and a positive decision ought to have issued before June 29, 2012 - The applicant had not established any bad faith or improper purpose in the delay - The applicant knew on June 21, 2012, that a positive selection decision did not mean that a visa would issue - There was no basis for a claim of legitimate expectation - See paragraphs 13 to 26.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - The applicant applied for judicial review by way of mandamus concerning his application for a visa under the Federal Skilled Worker (FSW) class - The visa application was deemed terminated by retrospective legislation set out in s. 87.4 of the Immigration and Refugee Protection Act, which came into effect on June 29, 2012 - At issue was whether a selection decision made before June 29, 2012 was sufficient to prevent termination by s. 87.4 of the applicant's visa application - The Federal Court stated that "The issue is primarily one of law, directed at the limits of the operation of the visa process and goes to the legal core of that process. This is not an area in which a visa officer has any expertise nor one in which an official of the executive branch of government should be able to decide the legal limits of the statute which governs him. The interpretation of the law in this case is one for the Court on the basis of correctness" - See paragraph 14.

Statutes - Topic 6701

Operation and effect - Commencement, duration and repeal - Retrospective and rectroactive enactments - General - [See Aliens - Topic 1230.4 ].

Cases Noticed:

Shukla v. Canada (Minister of Citizenship and Immigration) (2012), 423 F.T.R. 86; 2012 FC 1461, refd to. [para. 21].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 87.4 [para. 2].

Counsel:

Lawrence Wong, for the applicant;

R. Keith Reimer, for the respondent.

Solicitors of Record:

Lawrence Wong & Associates, Vancouver, British Columbia, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application was heard on November 14, 2013, at Vancouver, British Columbia, before Phelan, J., of the Federal Court, who delivered the following decision on January 15, 2014.