回复: 87.4对诉讼的影响 87.3对所有移民积案的影响
1. The applicant submitted an application for permanent residence in Canada including payment of the requisite processing fee, before Feb. 2008.
2. The applicant filed the application together with the appropriate filling fee required by law and believed upon payment that a contractual right had been established to have the application heard and processed which can be expressed as a legal legitimate expectation that this process will take place in accordance with IRPA and its regulations together with the objectives of IRPA. As such the applicant had a vested right and it would be unreasonable to confiscate arbitrarily this right and thus the applicant continues to have a right to be processed.
3. The rule of law is a fundamental principle of the constitution which has been indirectly derived from Magna Carta 1215. The rule of the law protects individuals from arbitrary state action which lacks reasonability. There is a presumption against the retroactivity of statutes. A statute will not be proceeded retroactively unless it states so explicitly and is not capable of any other interpretation. section 87.4 of IRPA is not sufficiently clear to be applied retrospectively.
4. Section 87.4 (1) of IRPA infringes section 15(1) of the Canadian Charter of Rights And Freedom and the infringement of under subsection 15(1) of the charter is not saved by section 1; the infringement is not a reasonable limit prescribed in law and is therefore of no force and effect.
5. The provisions of section 87.4must be interpreted in a manner consistent with all the provisions of IRPA. Section 25(1) of the IRPA provides an applicant may seek exemption from any of the provisions of IRPA section 25 (1) applies to all the provisions of IRPA and there is nothing in the language of section 87.4 IRPA to exempt it from the application of section 25(1), the applicant has a right to seek an exemption from the application of 87.4 on humanitarian and compassionate grounds prior to an officer applying 87.4 to the applicant’s application
6. In the alternative the language of section 87.4(1) of IRPA is vague and leads to uncertainty.
7. That while it may be permissible to foreclose a right of recourse if applications are terminated by clear operation of law, given the discretion involved in determining the applicability of sub section 87.4(1) of IRPA it is unlawful not to allow that discretion to be reviewed by the court in a meaningful way.
8. Section 87.4(2) leads to unjust enrichment contrary to The Financial Administration Act. with the applications terminated particularly after delays caused by the The Minister of Citizenship and Immigration Canada the enrichment becomes unjust and unlawful.
9. The delay in processing the application is not attributable to the applicant.
10. The minister is under duty to render a decision.
11. The decision was unlawfully made, in that the tribunal ignored relevant evidence, misconstrued the evidence before it and breached the principles of Fundamental and Natural Justice.
12. The tribunal erred in law in that it misconstrued the facts before it.
13. The tribunal erred in law in that it unduly fettered its discretion in the manner in which it conducted the termination.
14. The applicant has a legitimate expectation that filed application be processed in accordance with the policy manual.
15. Such further and other grounds as counsel may advise and Hon'ble court permits.
以上是印度人总结的87.4违宪的论点和相关证据
1. The applicant submitted an application for permanent residence in Canada including payment of the requisite processing fee, before Feb. 2008.
2. The applicant filed the application together with the appropriate filling fee required by law and believed upon payment that a contractual right had been established to have the application heard and processed which can be expressed as a legal legitimate expectation that this process will take place in accordance with IRPA and its regulations together with the objectives of IRPA. As such the applicant had a vested right and it would be unreasonable to confiscate arbitrarily this right and thus the applicant continues to have a right to be processed.
3. The rule of law is a fundamental principle of the constitution which has been indirectly derived from Magna Carta 1215. The rule of the law protects individuals from arbitrary state action which lacks reasonability. There is a presumption against the retroactivity of statutes. A statute will not be proceeded retroactively unless it states so explicitly and is not capable of any other interpretation. section 87.4 of IRPA is not sufficiently clear to be applied retrospectively.
4. Section 87.4 (1) of IRPA infringes section 15(1) of the Canadian Charter of Rights And Freedom and the infringement of under subsection 15(1) of the charter is not saved by section 1; the infringement is not a reasonable limit prescribed in law and is therefore of no force and effect.
5. The provisions of section 87.4must be interpreted in a manner consistent with all the provisions of IRPA. Section 25(1) of the IRPA provides an applicant may seek exemption from any of the provisions of IRPA section 25 (1) applies to all the provisions of IRPA and there is nothing in the language of section 87.4 IRPA to exempt it from the application of section 25(1), the applicant has a right to seek an exemption from the application of 87.4 on humanitarian and compassionate grounds prior to an officer applying 87.4 to the applicant’s application
6. In the alternative the language of section 87.4(1) of IRPA is vague and leads to uncertainty.
7. That while it may be permissible to foreclose a right of recourse if applications are terminated by clear operation of law, given the discretion involved in determining the applicability of sub section 87.4(1) of IRPA it is unlawful not to allow that discretion to be reviewed by the court in a meaningful way.
8. Section 87.4(2) leads to unjust enrichment contrary to The Financial Administration Act. with the applications terminated particularly after delays caused by the The Minister of Citizenship and Immigration Canada the enrichment becomes unjust and unlawful.
9. The delay in processing the application is not attributable to the applicant.
10. The minister is under duty to render a decision.
11. The decision was unlawfully made, in that the tribunal ignored relevant evidence, misconstrued the evidence before it and breached the principles of Fundamental and Natural Justice.
12. The tribunal erred in law in that it misconstrued the facts before it.
13. The tribunal erred in law in that it unduly fettered its discretion in the manner in which it conducted the termination.
14. The applicant has a legitimate expectation that filed application be processed in accordance with the policy manual.
15. Such further and other grounds as counsel may advise and Hon'ble court permits.
以上是印度人总结的87.4违宪的论点和相关证据
