Date: 20040608
Docket: IMM-4286-03
Citation: 2004 FC 826
Toronto, Ontario, June 8th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
OMAR AKRAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This application concerns the transition from the former and now repealed Immigration Act, R.S.C. 1985, c. I-2 (the "former Act") and Immigration Regulations, 1978, SOR/78-172 (the "former Regulations") to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") and the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "new Regulations"). Mr. Akram's application for permanent residence in Canada was assessed and denied under IRPA and the new Regulations five months after they came into effect. He seeks to have the visa officer's decision overturned and the matter remitted for reconsideration.
BACKGROUND
[2] Mr. Akram is a citizen of Pakistan. He applied for permanent residence in Canada as an independent skilled worker, his intended profession in Canada being a design and development/electronics engineer, a field in which he has both educational qualifications and work experience.
[3] Mr. Akram signed his application forms on January 14, 2002. His application was received by the Immigration Section of the Canadian High Commission in London, England on February 20, 2002 together with a letter from his immigration consultant. The consultant's letter contains the following remarks:
The proposed regulations, expected to be implemented on the 28 June 2002, there is compelling evidence to suggest that this applicant's assessment points under these regulations, do not fully reflect his employment potential nor his establishment probabilities. We ask that you take this into consideration while ascertaining the admissibility, and request positive discretion under R.11.3(a).
[4] On June 28, 2002 the former Act and Regulations were repealed and IRPA and the new Regulations were brought into force. IRPA had received royal assent on November 1, 2001. Changes made to the assessment criteria for permanent resident applications were contained in the new Regulations. These Regulations were made public in the form of the Canada Gazette, Part I, Vol. 135, No. 50, on December 15, 2001 at p. 4477. The proposed transitional regulations related to skilled workers were included in this pre-publication.
[5] A second pre-publication of the new Regulations occurred on March 9, 2002 in Canada Gazette Part I, Vol. 136, No. 10, p. 558. The new Regulations in their final form were published in the Canada Gazette Part II, Extra Vol. 136, No. 9 on June 14, 2002. This included a final Regulatory Impact Analysis Statement ("RIAS") and also informed the public that the new pass-mark for independent skilled workers applying for permanent residence in Canada was 75 units.
The Decision under Review
[6] By letter dated November 27, 2002 the visa officer denied the applicant's application for permanent residence in Canada. The officer explained that Mr. Akram was assessed only under IRPA and the new Regulations because his application was received after January 1, 2002 and was pending immediately before IRPA and the new Regulations came into force: s. 190 of IRPA and s. 361 of the new Regulations. The officer went on to conclude as follows:
Pursuant to the regulations, applicants in the federal skilled worker class are assessed on the basis fo the minimum requirements set out in subsection 75(2) and the criteria set out in subsection 76(1). The assessment of these criteria determines whether a skilled worker will be able to become economically established in Canada. The criteria are age, education, knowledge of Canada's official languages, experience, arranged employment and adaptability.
Your application was assessed based on the occupation in which you requested assessment- design and development engineer- NOC 2133. The table below sets out the points assessed for each of the selection criteria:
... [The applicant only received 67 units]
You have obtained insufficient points to qualify for immigration to Canada, the minimum requirement being 75 points. Note that you were given the benefit of full points for high English language proficiency, based on your self-assessment. However, in future applications, you would need to provide supporting evidence (as required by IRPA regulations of your English language proficiency... Under IRPA, the elements used to assess adaptability points are specified and as you do not meet any of these criteria, you receive 0 points for this factor. You have not obtained sufficient points to satisfy me that you will be able to become established in Canada.
ISSUE
[7] Did the respondent breach the duty of fairness in failing to provide the applicant with notice of changes that had taken place in the legislation before denying his application?
ANALYSIS OF PARTIES' POSITIONS
[8] The applicant argues that he had a right to be informed by the respondent as to the changes in assessment criteria for permanent resident applications that took place when IRPA and the new Regulations came into effect. At paragraph 2 of his affidavit filed in this proceeding, Mr. Akram attests that in early December 2001 there was no announcement of any proposed changes to the immigration laws or criteria for assessment of permanent residents on the respondent's department's website. According to the applicant, the respondent's failure to provide him with information on the new assessment criteria precluded him from meaningful participation in the application process. The applicant relies on the decision of Choi v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 763 (C.A.) to support his argument that the respondent had a duty to inform him of the new assessment criteria prior to refusing him.
[9] The applicant submits that the visa officer breached the principles of procedural fairness in not notifying him of the new criteria that applied to his application under IRPA and the new Regulations, so that he could have attempted to satisfy this criteria prior to the visa officer making her decision on his application. He points to a change in circumstance - the landing of his aunt in Canada - that would have given him five additional points had he had the opportunity to bring it to the attention of the officer. The applicant acknowledges that the five additional points would not have brought him to the requisite 75 units under the new scheme. He argued at the hearing that if the matter were to be remitted for reconsideration, it would have to be under the new criteria and threshold- the pass-mark now being 67 units. Moreover, he argued that he had originally requested the use of the officer's positive discretion and that since such possibility remains in the current immigration scheme, it is unknown as to whether he may have received a more favourable assessment overall had he been alerted of the changes in legislation and given a chance to provide further submissions.
[10] The respondent's position is that the visa officer did not breach the duty of fairness in assessing the applicant's application under IRPA and the applicant has not demonstrated any other reviewable error in processing his application pursuant to the selection criteria set out in IRPA. The respondent maintains that there was no obligation on the visa officer or the respondent's department, Citizenship and Immigration Canada ("CIC"), to notify the applicant of a change in legislation. Public notice of the anticipated changes to IRPA was made through publication in the Canada Gazette and the respondent argues that a person is deemed to know the terms of the law at the time of its publication in this source.
[11] In relation to applications for permanent residence, the respondent relies on the decision of Yu v. Canada (Minister of Employment and Immigration) (1995), 11 Imm. L.R. (2d) 176 (F.C.T.D.), where it was held that applicants have the duty of ensuring that they meet the criteria and requirements of the statute and regulations and an officer of the respondent has no duty to inform an applicant of concerns that arise directly from the legislation.
[12] The respondent also relies on the principle that ignorance of the law is not an excuse, given that the applicant with or without his chosen representative could have reviewed the legislative provisions in order to understand and satisfy the requirements of IRPA. In order to maintain the operation of the rule of law, ignorance of the law cannot be accepted as an excuse. The new legislation received royal assent on November 1, 2001 and the public understood that the new legislative scheme was "imminent" and that pending applications could be treated differently.
[13] Also, according to the respondent, the applicant knew or ought to have known since December 15, 2001 when the proposed Regulations were pre-published in the Canada Gazette Part I that the selection criteria for immigration to Canada was changing, and that as described in the RIAS, applications filed on or after a particular date would be subject to assessment under IRPA. The respondent also asserts that the final version of the new Regulations was published and publicly available on June 14, 2002, setting out the new pass-mark of 75 units and the new selection criteria, and the onus was on the applicant to alert the visa officer of any further information or documentation in support of his application. The applicant had several months after the coming into force of IRPA to do this prior to his application being assessed and rejected under the new criteria.
[14] The respondent points to the correspondence from the applicant's Canadian-based immigration consultant to the London Immigration office, an excerpt from which appears above, which indicates that the consultant was clearly aware in February 2002 that the criteria for selection was being changed and that he was unlikely to succeed under the new criteria without the exercise of the officer's positive discretion.
[15] The respondent submits that the recent decision of Kazi v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1212 (F.C.)(QL) is distinguishable from the present case, in that the applicant in Kazi was not given a reasonable period of time to further complete or perfect his application after the coming into force of IRPA and the new Regulations, and in this case the applicant had more than five months to inform CIC of any new information that he desired to add to his application in order to address the new selection criteria. The information about the landing of the aunt would have had no material effect on the outcome of the application as the applicant would still have fallen short of the required 75 points.
[16] Sections 2(2) and 190 of IRPA are relevant to this judicial review application:
| 2 (2) Unless otherwise indicated, references in this Act to "this Act" include regulations made under it.
190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force. |
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2 (2) Sauf disposition contraire de la présente loi, toute mention de celle-ci vaut également mention des règlements pris sous son régime.
190. La présente loi s'applique, dès l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise.
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[17] Pursuant to section 361 of the new Regulations, including most recent amendments effective as of December 1, 2003, SOR/2003-383, January 1, 2002 is the critical date for applications being considered under IRPA or the former Act. If an applicant's application was received by CIC on or after that date, the application must be assessed under IRPA and the new Regulations.
[18] In my opinion, while one can sympathize with the applicant's situation, I do not accept his argument that the respondent had a duty to directly inform him of the changes that took place with the passing of IRPA and the new Regulations and how the transitional provisions affected the assessment of his application. I have come to this conclusion for the following reasons: (1) the legal principle that ignorance of the law cannot be used as a defence, or in this case, as a sword to claim a procedural right to be informed of changes in the law, is one that weighs heavily against the applicant; (2) the applicant had the assistance of an immigration consultant in dealing with his immigration matters who was clearly aware of the proposed changes; (3) in his affidavit filed in this proceeding, the applicant admits that he only reviewed the criteria for immigration as a skilled worker to Canada in December 2001, yet there is no mention in his affidavit of any other attempt on his part to keep informed about the immigration process, or any difficulty he encountered in accessing information about Canada's immigration laws after that point in time; (4) the onus is on applicants to demonstrate that they meet the selection requirements imposed by immigration laws and there is no unqualified right of immigration to Canada: see Yu, supra, and Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711; (5) the decision of Choi, supra, is distinguishable; and (6) the decision of Kazi, supra, is also distinguished from this case.
[19] Only points five and six require further elaboration and I set this out below. The applicant relies on the Federal Court of Appeal decision in Choi, supra, to support his submission that the respondent had a duty to provide notice of the changed law pertaining to his permanent resident application. Choi dealt with a situation where the respondent's department had failed to provide accurate information to applicants, thereby, to a certain degree misleading the applicant. Moreover, this information was provided to the applicant after he had made specific inquiry with the visa office. I do not find that this decision stands for the proposition that the respondent has an all-encompassing duty to inform applicants of changes in the legislative scheme.
[20] Next, I agree with the respondent that Justice Martineau's decision in Kazi, supra, is not directly applicable to the present case, given the length of time that the applicant had from the coming into force of IRPA on June 28, 2002 and the ultimate decision on his application, dated November 27, 2002. The applicant had nearly five months during which time the new selection criteria was published in final form and was binding as the new law of Canada. He had a reasonable opportunity to complete and add information to his application for permanent residence, in light of the new selection criteria, and he choose not to do so. A reading of Justice Martineau's decision as a whole reveals that the timing of the rejection of that applicant's application was a crucial factor in the decision, and informed the Court's finding that the visa officer had a duty to notify the applicant that he would be assessed under changed selection criteria and provide the applicant with a reasonable amount of time in which to provide any additional information to supplement his application, prior to making a decision on the application.
[21] In Kazi, Justice Martineau held that since an applicant could not be expected to comply with regulations that were not yet in force prior to June 28, 2002, the rejection of the applicant's application on July 18, 2002, only 33 days after the change in the law, was an unreasonably short time period for the applicant to become informed with the new legislation and supply any additional information to the visa office. In those factual circumstances, Justice Martineau held that the visa officer should have "promptly informed" the applicant that he would now be assessed under changed criteria and give him a reasonable time period in which to provide additional information.
[22] In Rani v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1477 (T.D.)(QL), Justice Beaudry stated as follows at paragraph 40:
It is noted that, as in the present case, the applicant in Yu submitted that if she had been asked, she would have given the information that the visa officer required. However, inherent in the remarks quoted above is the widely recognized maxim that ignorance of the law is not an excuse. The applicant could have accessed the Act and the Regulations and, either on her own or with the assistance of counsel, reviewed it in order to understand what is required of her, and prepare valid evidence to meet that burden. It was not up to the visa officer to tell her whether or not she had met that burden, or even what degree of progress she was making in that direction. The applicant knows her own life experiences and qualifications better than the visa officer did before having met her. It is therefore incumbent upon the applicant to bring forward her best case.
[23] In my opinion, such reasoning is applicable to the case at hand. The applicant was by no means obligated to provide the visa officer with information going to the new selection criteria prior to June 28, 2002, however, after the coming into force of IRPA, the applicant is presumed to have known the law by himself, or through his consultant, obtaining access to the new selection criteria. The applicant had more than five months within which to do this and to submit further information addressing the new selection criteria, however he failed to do so, notwithstanding the fact that his consultant was clearly aware that the criteria were being changed as early as February 2002. I find it relevant that no effort was made during this period of time to inform the officer of the change of circumstances respecting the applicant's aunt. Given the amount of time that passed before the decision was made, the visa officer was under no obligation to inform the applicant of the new selection criteria and pass-mark of 75 units.
[24] For these reasons, the application is dismissed.
Certification of a Serious Question of General Importance
[25] The applicant requested that the question posed by Justice Martineau in Kazi, supra be certified in these proceedings, to wit:
Is there any duty on the visa officer who, on or after June 28, 2002, in assessing an application which was submitted on or after January 1, 2002, in accordance with the former Act and Regulations, to notify the applicant that such application will be assessed under changed criteria in accordance with the new Act and Regulations, and to invite the applicant to complete and perfect such application within a reasonable time period, as fixed by the visa officer, before making an assessment under the changed criteria?
[26] The respondent argues that the question should not be certified as it would not be determinative of the appeal.
[27] A question certified under IRPA s. 74 should be one that transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application, see Gyamfuah v. Canada (Minister of Employment and Immigration) (1994), 80 F.T.R. 58; Dragan v. Canada (Minister of Citizenship and Immigration) (2003), 228 F.T.R. 52. Moreover, it should be dispositive of the appeal: Bath v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1207 (T.D.)(QL).
[28] The applicant took no advantage of the opportunity open to him to submit additional information to the visa officer during an extended period leading up to and following the change of the legislation. He must be imputed with the knowledge demonstrated by his consultant that the criteria were changing while his application was pending and he was unlikely to be successful under the new criteria without some discretion being exercised in his favour. The additional information he suggests that he would have submitted if put on notice, his aunt's landing, would have had no material effect on the outcome of his application. I am not satisfied that the question posed would therefore be dispositive of the appeal on the facts of the record before me. Accordingly, I decline to certify the question.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4286-03
STYLE OF CAUSE: OMAR AKRAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 7, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: JUNE 8, 2004
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Chaudhary Law Office Toronto, Ontario |
FOR THE APPLICANT |
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Deputy Attorney General of Canada Toronto, Ontario |
FOR THE RESPONDENT |
FEDERAL COURT
Date: 20040608
Docket: IMM-4286-03
BETWEEN:
OMAR AKRAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER