In Tabingo c. Canada (Citizenship and Immigration), 2013 FC 377, the Federal Court (the “Court“) certified three questions when it dismissed the class action lawsuit launched by people whose permanent residence applications were terminated by Bill C-38, the Jobs Growth and Long-term Prosperity Act (“Bill C-38“).  Bill C-38 introduced a new s. 87.4(1) (“Section 87.4(1)“)to the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA“) ,which terminated Federal Skilled Worker Class applications made before February 27, 2008 unless an officer had made a selection decision before March 29, 2012.

Section 87.4(1) reads:

87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.

(2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.

(3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa.

(4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.

(5) No person has a right of recourse or indemnity against Her Majesty in connection with an application that is terminated under subsection (1).

The Court’s certified questions are:

1. Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus?
2. Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA?
3. Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Canadian Charter of Rights and Freedoms?

Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus?

The applicants argued that Section 87.4 did not apply retrospectively to interfere with vested rights, and that it did not operate to terminate the applications as a matter of law.  Rather, they argued that individualized adjudication must follow to determine which applications were encompassed.

In rejecting this argument, the Court reiterated that the principles of statutory interpretation are that courts will not interpret legislation in a manner that removes existing rights or entitlements unless Parliament’s intention to do so is clear.  However, when a statute is unambiguous the courts have to interpret it according to its ordinary meaning.  On the issue of Section 87.4, the Court wrote:

Here, the ordinary meaning of the provision governs.  The meaning and effect of the word “terminated” is clear.  Section 87.4, by its terms, is explicitly designed to apply retrospectively to applications dated before February 27, 2008 and to eliminate the obligation to further process pending applications.  The plain and obvious meaning of section 87.4 requires that the provision be retrospective and interfere with vested rights, regardless of any perceived unfairness.  The three presumptions relied on by the applicants are displaced by the clarity of Parliament’s intention.  Further, to interpret the section otherwise would leave it without any effect beyond refunding the application fee.

The Court further held that Section 87.4 entailed a non-discretionary application of law to verifiable and incontrovertible facts.

Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA?  

Subsection 1(a) of the Bill of Rights protects the right not to be deprived of property except by due process of law.  Subsection 2(e) guarantees a fair hearing for the determination of rights and obligations.  The applicants argued that Section 87.4(1) of IRPR breached both of these requirements.

On the latter issue, the Court determined that due process protections of the Bill of Rights do not apply to legislative enactments, and that the Bill of Rights only guarantees the fairness of proceedings before a tribunal or administrative body that determines rights and obligations.  In reaching this decision, the Court relied on the following passage from the Supreme Court of Canada’s decision in Authorson v Canada (Attorney General):

Similarly, s. 1(a) may be seen as conferring procedural protections against the deprivation of property that existed in 1960.  Certain procedural rights in this regard have long been recognized.  In Lapointe v. Association de Bienfaisance et de Retraite de la Police de Montréal, [1906] A.C. 535, the Privy Council recognized a right to have notice of accusations made and an opportunity to make a defence where the board of directors of a pension board stripped a police officer, who had resigned, of his pension.  Where the law requires the application of discretion or judgment to specific factual situations, notice and an opportunity to contest may be required.  For example, such rights may exist where the government eliminates a veteran’s benefits because it believes he is no longer disabled, or because it believes he was never a member of the armed forces.  However, notice and an opportunity to make a defence are not required where the government legislates to completely eliminate such benefits.

The Court also found that submitting an economic immigration application did not vest any rights in an applicant, but rather was a mere chance to gain access to economic opportunities in Canada.

Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Canadian Charter of Rights and Freedoms?

After extensive obiter about whether the applicants could even claim to be entitled to Charter protection, the Court ruled that it did not matter in any event because Section 87.4(1) of IRPA did not breach the Charter.  

Regarding s. 7, the Court found that it was primarily (though not exclusively) concerned with the rights of individuals in the criminal justice context, including rights on search, seizure, detention, arrest, trial and imprisonment, as well as in the non-criminal contexts of the freedom to make fundamental personal choices, and the freedom to physical and pyschological integrity.

The Court further stated, however, that it did not extend to immigration, as the ability to immigrate, particularly as a member of an economic class, is not among the fundamental choices relating to personal autonomy which would engage s. 7 of the Charter.  To paraphrase, while immigration may have life-altering consequences, the possibility of immigrating to Canada as a successful economic applicant does not engage life or liberty interests.

Regarding s. 15, the applicants argued that Section 87.4 codified and legitimized past discrimination on the basis of national origin and country of residence.  The evidence was that approximately 92% of the terminated applications originated in Africa, the Middle East, Asia and the Pacific, while 8% of the terminated applications originated in Europe and the Americas.  However, the Court found that the fact that immigrants arrive from all over the world, that Citizenship and Immigration Canada tried to address backlogs by transferring processing, and that people from all over the world living in Canada could (then) apply to the Canadian Consulate in Buffalo, showed that there was no discrimination.

Conclusions

Considering that around 1,000,000 people were affected by the Tabingo decision, it is not surprising that the Court certified the above three questions.  The matter is now on its way to the Federal Court of Appeal.