Good day,
Attached is an article from yesterday's Globe & Mail, summarizing an interview with the Minister for Citizenship and Immigration, the Hon. Jason Kenney, P.C., M.P. The Minister stated that he intends to:
1. impose a minimum English score for FSW immigrants,
2. require "fluency" for some professions,
3. reduce the age (to 35) for maximum points for age
4. require applicants in licensed occupations have their
professional credential approved before they apply and
5. create yet another "fast track".
The fifth point means that those who applied earlier will be pushed even further back down the queue.
Please keep in mind that, although many believe that I won the case in 2002 where I challenged CIC intention to apply the now current selection criteria with a 72-point pass-mark retrospectively, I actually lost on the legal issue but, nevertheless, the Court ordered CIC to make selection decisions on our 102 litigants before the new rule went into effect five weeks later; see below. Thus, CIC may if it chooses apply these new criteria on pending files.
I expect to serve and file written arguments in my current mandamus litigation and, in addition to seeking the Court to order CIC to commence processing the 655 litigants files, I am also asking the Court to prohibit CIC from refusing any of them under selection criteria not in force when their applications were received.
Regards,
Tim
Here is the Court's ruling.
[36] The Regulations, in full compliance with the authorizing section of the Act (section 201), make certain transitional exceptions from the general retrospective regime. These exceptions only apply to applications filed before January 1, 2002. In particular, section 361(3) provides that, until March 31, 2003, units of assessment shall be awarded to economic class applicants who applied before January 1, 2002 in accordance with the former Regulations. Section 361(5) provides that,
beginning from April 1, 2003, such applicants will be assessed under the new Regulations but will have to obtain a minimum of 70 points (as opposed to the general pass-mark of 75) to qualify in the federal skilled worker class. In my opinion, these provisions clearly express the intent of the Governor-in-Council to apply the new selection system to all applicants before January 1, 2002 who have not been assessed prior to April 1, 2003, with the concession that applicants who applied before January 1, 2002 will be given a 5 point bonus under the new system.
[37] This interpretation of the transitional provisions is supported by jurisprudential precedent. In Chen v. Canada (Secretary of State), (1995) 91 F.T.R.76, the Federal Court of Appeal was concerned with interpretation of section 109 of An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49 (commonly known as Bill C-86) - a provision quite similar in language to section 190 of the IRPA. Rothstein J. held that such language was sufficiently clear to convey the legislative intent that the law should apply retrospectively (at para. 12):
[...] Parliament, by section 109, has clearly stated how amendments to the Immigration Act under Bill C-86 are to apply. Such express statutory provision overrides any common law rule or general provision in the Interpretation Act applicable in the absence of such legislation.
I therefore conclude that section 361 of the IRPR is validly authorized retrospective legislation and should operate according to its terms. This means that the applications filed after January 1, 2002 are to be assessed under the new Regulations, and applications filed before January 1, 2002 shall be assessed under the old Regulations up until March 31, 2003.
[64] For these reasons, the Court will grant a writ of mandamus in the 102 Court files set out in Schedule A hereto requiring the respondent and his officers, on or before March 31, 2003, assess the 102 applicants and award units of assessment in accordance with the former Regulations.[…]
[65] This Court proceeding only applies to the applications which are the subject of this consolidated application. The parties have worked hard over the past five months to have these cases heard before March 31, 2003. At this point, it is too late for the Court to consider before March 31, 2003 any new applications for a writ of mandamus with respect to the remaining 80,000 to 120,000 visa applications filed before January 1, 2002.
Attached is an article from yesterday's Globe & Mail, summarizing an interview with the Minister for Citizenship and Immigration, the Hon. Jason Kenney, P.C., M.P. The Minister stated that he intends to:
1. impose a minimum English score for FSW immigrants,
2. require "fluency" for some professions,
3. reduce the age (to 35) for maximum points for age
4. require applicants in licensed occupations have their
professional credential approved before they apply and
5. create yet another "fast track".
The fifth point means that those who applied earlier will be pushed even further back down the queue.
Please keep in mind that, although many believe that I won the case in 2002 where I challenged CIC intention to apply the now current selection criteria with a 72-point pass-mark retrospectively, I actually lost on the legal issue but, nevertheless, the Court ordered CIC to make selection decisions on our 102 litigants before the new rule went into effect five weeks later; see below. Thus, CIC may if it chooses apply these new criteria on pending files.
I expect to serve and file written arguments in my current mandamus litigation and, in addition to seeking the Court to order CIC to commence processing the 655 litigants files, I am also asking the Court to prohibit CIC from refusing any of them under selection criteria not in force when their applications were received.
Regards,
Tim
Here is the Court's ruling.
[36] The Regulations, in full compliance with the authorizing section of the Act (section 201), make certain transitional exceptions from the general retrospective regime. These exceptions only apply to applications filed before January 1, 2002. In particular, section 361(3) provides that, until March 31, 2003, units of assessment shall be awarded to economic class applicants who applied before January 1, 2002 in accordance with the former Regulations. Section 361(5) provides that,
beginning from April 1, 2003, such applicants will be assessed under the new Regulations but will have to obtain a minimum of 70 points (as opposed to the general pass-mark of 75) to qualify in the federal skilled worker class. In my opinion, these provisions clearly express the intent of the Governor-in-Council to apply the new selection system to all applicants before January 1, 2002 who have not been assessed prior to April 1, 2003, with the concession that applicants who applied before January 1, 2002 will be given a 5 point bonus under the new system.
[37] This interpretation of the transitional provisions is supported by jurisprudential precedent. In Chen v. Canada (Secretary of State), (1995) 91 F.T.R.76, the Federal Court of Appeal was concerned with interpretation of section 109 of An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49 (commonly known as Bill C-86) - a provision quite similar in language to section 190 of the IRPA. Rothstein J. held that such language was sufficiently clear to convey the legislative intent that the law should apply retrospectively (at para. 12):
[...] Parliament, by section 109, has clearly stated how amendments to the Immigration Act under Bill C-86 are to apply. Such express statutory provision overrides any common law rule or general provision in the Interpretation Act applicable in the absence of such legislation.
I therefore conclude that section 361 of the IRPR is validly authorized retrospective legislation and should operate according to its terms. This means that the applications filed after January 1, 2002 are to be assessed under the new Regulations, and applications filed before January 1, 2002 shall be assessed under the old Regulations up until March 31, 2003.
* * *
[65] This Court proceeding only applies to the applications which are the subject of this consolidated application. The parties have worked hard over the past five months to have these cases heard before March 31, 2003. At this point, it is too late for the Court to consider before March 31, 2003 any new applications for a writ of mandamus with respect to the remaining 80,000 to 120,000 visa applications filed before January 1, 2002.
