Summary

36213

Ali Raza Jafri, et al. v. Minister of Citizenship and Immigration

(Federal Court) (Civil) (By Leave)

Keywords

Canadian charter (Non-criminal) - Immigration, Permanent residents.

Summary

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The Respondent, Minister of Citizenship and Immigration refused to process the applications of approximately 1,400 foreign nationals who applied before February 27, 2008 for permanent resident visas as members of the federal skilled worker class. The Minister’s refusal to process the Applicants’ permanent resident visa applications was based on s. 87.4(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). The provision was added to the IRPA by Bill C-38, known as the Jobs Growth and Long-term Prosperity Act. It was proclaimed in force on June 29, 2012. The amendment provides that applications for permanent residence as a member of the federal skilled worker class made before February 27, 2008 are terminated unless an officer had made a selection decision before March 29, 2012.

The Applicants all applied for a permanent resident visa as a member of the federal skilled worker class before February 27, 2008. Some of the applications were submitted in 2005, others in 2007. None of the applications were processed to completion. When the Minister refused to process the Applicants’ applications for permanent resident visas as members of the federal skilled worker class, based on s. 87.4(1) of the IRPA, the Applicants applied to the Federal Court for judicial review of the Minister’s refusal. They sought a number of remedies, including an order of mandamus requiring the Minister to process their permanent resident visa applications. They also filed Notices of Constitutional Question alleging that s. 87.4(1) violates the rule of law and the Canadian Charter of Rights and Freedoms. The applications for judicial review were heard together based on eight cases that were agreed to be representative of all of the others. The applications for judicial review were all dismissed. The subsequent appeals to the Federal Court of Appeal were also dismissed.

Second Application: Charter of Rights – Immigration – Permanent residents – Federal skilled worker class – Whether section 87.4 of the IRPA violates the principle of nature justice and rule of law which are the foundation of the Constitution – Whether section 87.4 of the IRPA violates the principle of non-retroactivity law – Whether section 87.4 of the IRPA leads to behaviour of breach of faith and the principle of estoppels apply to this case – Whether section 87.4 of the IRPA violates the principle of private international law or conflict of laws – Whether section 87.4 of the IRPA deviated from international obligations contracting states should fulfill, especially in the positive meaning of those provisions of the treaties such as Universal Declaration of Human Rights, Charter of the Union Nation, International Covenant on Economic, Social and Cultural Rights – Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 87.4 – Canadian Charter of Rights and Freedoms.

The Respondent, Minister of Citizenship and Immigration refused to process the applications of approximately 1,400 foreign nationals who applied before February 27, 2008 for permanent resident visas as members of the federal skilled worker class. The Minister’s refusal to process the Applicants’ permanent resident visa applications was based on s. 87.4(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). The provision was added to the IRPA by Bill C-38, known as the Jobs Growth and Long-term Prosperity Act. It was proclaimed in force on June 29, 2012. The amendment provides that applications for permanent residence as a member of the federal skilled worker class made before February 27, 2008 are terminated unless an officer had made a selection decision before March 29, 2012.

The Applicants all applied for a permanent resident visa as a member of the federal skilled worker class before February 27, 2008. Some of the applications were submitted in 2005, others in 2007. None of the applications were processed to completion. When the Minister refused to process the Applicants’ applications for permanent resident visas as members of the federal skilled worker class, based on s. 87.4(1) of the IRPA, the Applicants applied to the Federal Court for judicial review of the Minister’s refusal. They sought a number of remedies, including an order of mandamus requiring the Minister to process their permanent resident visa applications. They also filed Notices of Constitutional Question alleging that s. 87.4(1) violates the rule of law and the Canadian Charter of Rights and Freedoms. The applications for judicial review were heard together based on eight cases that were agreed to be representative of all of the others. The applications for judicial review were all dismissed. The subsequent appeals to the Federal Court of Appeal were also dismissed.