[2013] 2 F.C.R. D-5
Citizenship and Immigration
Status in Canada
Permanent Residents
Judicial review of decision denying applicant permanent resident visa under skilled workers class because application falling outside annual “cap” imposed by policy on class in question—Based on ministerial instructions of 2011, maximum of 10 000 new federal skilled worker applications to be considered for processing yearly; maximum of 500 applications per national occupation classification (NOC) set—Applicant submitting application for permanent residence under NOC 0631, Food and Restaurant Manager—Respondent’s Web site indicating number of applications received by NOC category on monthly basis—Applicant filing application in November 2011; Web site reporting that cap standing at 458 in December 2011—Applicant informed in January 2012 that application rejected because cap of 500 applications for NOC 0631 already reached, which maximum reached in September 2011—Whether breach of procedural fairness occurring herein—Evidence not establishing applicant having legitimate expectation that number of applications received by any specific date would be absolutely accurate as of date in question—No evidence that cap not reached in September 2011 when applicant had not yet filed application; no suggestion that applicant holding off filing application in reliance on understanding that cap would not be reached for considerable period—Once cap met in present case, applicant not having filed application in advance, any legitimate expectation having been met—Nothing suggesting number of applications posted on Web site accurate, complete such as to create legitimate expectation in accuracy of number—In applying fairness principle herein, impact of applicant’s position vis-à-vis others considered—All persons filing applications after September 2011 but before applicant would have just as legitimate complaint as applicant; would have priority over applicant since having filing date prior thereto—Would not be equitable to grant applicant relief without addressing other applicants’ situation—Application dismissed.
Agama v. Canada (Citizenship and Immigration) (IMM-1294-12, 2013 FC 135, Phelan J., judgment dated February 7, 2013, 6 pp.)