[2016] 3 F.C.R. D-11
Citizenship and Immigration
Status in Canada
Permanent Residents
Applications for writ of mandamus compelling respondent to process applicants’ permanent residence applications under federal skilled worker (FSW) class, which class terminated by Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 87.4(1) — Legislative amendments to Act eliminating legal obligation of Citizenship and Immigration Canada (CIC) to process every FSW application, request received — Act, s. 87.4 eliminating part of backlog of FSW applications by cancelling those made prior to February 27, 2008, where no selection decision made before March 29, 2012 — Protocol to promote expediency, better organize litigation prepared for litigants in pending FSW applications signed, two representative cases chosen for litigation — Court in Liang v. Canada (Citizenship and Immigration), 2012 FC 758 granting mandamus, however later deciding relief in Liang not applying to FSW applications terminated by s. 87.4 — Principal issues whether protocol enforceable; whether s. 87.4 applicable, constitutional; whether respondent can be compelled to process applications; whether s. 87.4 breaching judicial independence, applicants’ access rights; whether s. 87.4 abuse of process — Applicants having no vested rights to enforce — Protocol referring to “possible” disposition of remaining cases held in abeyance, meaning that disposition may not be possible — No evidence to suggest that respondent intended such an undertaking (i.e. that all applications would be dealt with) — No basis upon which to order mandamus based upon protocol alone — Applicants wrong to argue that the protocol is a final determination of the Court, so that all cases subject to the protocol are exempted from s. 87.4(1) by virtue of s. 87.4(2) — Protocol nothing more than case management device, not a final determination of the “application” — Act, s. 87.4(2) not exempting applicants from s. 87.4(1) — Section 87.4 valid legislation as found in Tabingo v. Canada (Citizenship and Immigration), 2013 FC 377, [2014] 4 F.C.R. 150 — Doctrine of legitimate expectations not arising in present case — Respondent could not exercise public policy exemption under Act, s. 25.2 in favour of applicants — To do so would contradict will of Parliament embodied in s. 87.4(1) — Court cannot order respondent to do something that would be counter to Parliament’s clearly expressed will — No evidence that in enacting s. 87.4 Parliament had intention of interfering with judicial discretion to consider mandamus cases before it — Court cannot grant those cases because respondent no longer having obligation to consider them under s. 87.4(1) — Termination of FSW applications as result of statutory provisions legitimately enacted by Parliament not abuse of process — Applications dismissed.
Back v. Canada (Citizenship and Immigration) (IMM-6828-12, IMM-1-13, 2016 FC 257, Russell J., judgment dated February 29, 2016, 45 pp.)