Dong Liang (applicant) v. The Minister of Citizenship and ... - Slaw

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Dong Liang (applicant) v. The Minister of Citizenship and ... - Slaw

Dong Liang (applicant) v. The Minister of Citizenship and Immigration (respondent)(IMM-9634-11; IMM-137-12; 2012 FC 758)Indexed As: Liang v. Canada (Minister of Citizenship and Immigration)Federal CourtRennie, J.June 14, 2012.Summary:The applicants sought orders of mandamus compelling the Minister of Citizenship andImmigration (MCI) to process their applications for permanent residence under the federalskilled worker (FSW) class. The applications at issue were selected through a case managementprocess as representative cases for two groups of applicants whose FSW applications had notbeen processed to completion. Applicant Liang represented 671 applicants who submitted theirapplications before February 27, 2008, when amendments to the Immigration and RefugeeProtection Act were enacted through the Budget Implementation Act (2008) or Bill-C50 (pre-C50 applications). Applicant Gurung represented 154 applicants who submitted theirapplications between February 27, 2008 and June 26, 2010, a period of time during whicheligibility for a FSW visa was governed by a set of Ministerial Instructions (MI1 applications).Both applicants claimed that the MCI had unreasonably delayed processing their applications bychoosing to accord higher priority to applications submitted more recently and according todifferent criteria.The Federal Court allowed Liang's application for mandamus because of the delay in hiscase. With respect to the 670 other pre-C50 applicants, the court had no evidence before it withrespect to the factors unique to each particular application which might account for the delay.Part or all of the delay could be attributable to the conduct of the applicant or a third party overwhom the government had no control. Thus, each case would have to be determined on a caseby-casebasis, and with the exception of Liang, the court made no finding save that in respect ofthe remaining pre-C50 applicants, a prima facie case of delay was established and the MinisterialInstructions, in light of s. 120 of the Budget Implementation Act, 2008, did not constitute asatisfactory justification for that delay. As to Gurung, there was evidence that her application wascurrently being actively processed and there was thus no purpose to be served by an order formandamus. Gurung's application was dismissed. As to the other 153 applicants represented byGurung, their cases would turn on their own individual facts. However, the court stated thatwhere the Minister established a policy to process the MI1 applications within 6-12 months, theactual delay (ranging from 24-52 months) was prima facie longer than that which mightreasonably have been expected to have arisen. Furthermore, the Minister's authority to set policywas not, in these circumstances itself a satisfactory justification for the delay.Administrative Law - Topic 2267Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation -[See third Aliens - Topic 1230.4].


Administrative Law - Topic 3705Judicial review - Mandamus - Mandamus to government and executive - Ministers of theCrown - [See first and second Aliens - Topic 1230.4].Aliens - Topic 1230.4Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers -In 2012, the applicant (Liang), representing 671 applicants, sought mandamus compellingthe immigration Minister (MCI) to process their permanent residence applications underthe federal skilled worker class - The applications were submitted before February 27,2008, when amendments to the Immigration and Refugee Protection Act (IRPA) wereenacted through the Budget Implementation Act (2008) or Bill-C50 (pre-C50applications) - The applicants argued that the MCI had unreasonably delayed processingtheir applications (between 4.5 and nine years) by implementing Ministerial Instructionsunder the amended IRPA which accorded higher priority to and applied different criteriato applications submitted more recently - The Federal Court granted Liang's applicationfor mandamus because of delay, but held that the other applications would have to bedetermined on a case-by-case basis - However, with respect to the remaining pre-C50applicants, a prima facie case of delay was established and the Ministerial Instructionsdid not constitute a satisfactory justification for that delay - See paragraphs 1 to 49.Aliens - Topic 1230.4Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers -The applicant (Gurung), representing 154 applicants, sought mandamus compelling theimmigration Minister (MCI) to process their permanent residence applications under thefederal skilled worker (FSW) class - The applications were submitted between February27, 2008 and June 26, 2010, when the eligibility for a FSW visa was governed by a set ofMinisterial Instructions (MI1), including a policy of processing applications within 6-12months - The applicants claimed that the MCI had unreasonably delayed processing theirapplications (between 24-52 months) by according higher priority and imposing differentcriteria on more recent applications - The Federal Court held that mandamus wasunnecessary as Gurung's application was being actively processed - The other applicantscases, however, turned on their own individual facts - The court opined that because theMinister established a policy whereby those applications would be prioritized andprocessed within 6-12 months, the longer processing time constituted a prima facie caseof delay - Furthermore, the Minister's authority to set policy was not, in thesecircumstances, itself a satisfactory justification for the delay - See paragraphs 1 to 52.Aliens - Topic 1230.4Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers -The applicants sought mandamus compelling the immigration Minister (MCI) to processtheir permanent residence applications under the federal skilled worker (FSW) class - Theapplicants claimed that the MCI had unreasonably delayed processing their applicationsby according higher priority and imposing different criteria on more recent applications -The applicants argued that they had a legitimate expectation that their applications wouldbe processed on a first-in, first-out (FIFO) basis - The Federal Court rejected theapplicants' argument - There was nothing in the Immigration and Refugee Protection Act


Crown - In 2012, the applicant (Liang), representing 671 applicants, sought mandamuscompelling the immigration Minister (MCI) to process their permanent residenceapplications under the federal skilled worker class - The applications were submittedbefore February 27, 2008, when amendments to the Immigration and Refugee ProtectionAct (IRPA) were enacted through the Budget Implementation Act (2008) or Bill-C50(pre-C50 applications) - The applicants argued that the MCI had unreasonably delayedprocessing their applications (between 4.5 and nine years) by implementing MinisterialInstructions under the amended IRPA which accorded higher priority to and applieddifferent criteria to applications submitted more recently - The Federal Court grantedLiang's application for mandamus because of delay, but held that the other applicationswould have to be determined on a case-by-case basis - However, with respect to theremaining pre-C50 applicants, a prima facie case of delay was established and theMinisterial Instructions did not constitute a satisfactory justification for that delay - Seeparagraphs 1 to 49.Administrative Law - Topic 3705Judicial review - Mandamus - Mandamus to government and executive - Ministers of theCrown - The applicant (Gurung), representing 154 applicants, sought mandamuscompelling the immigration Minister (MCI) to process their permanent residenceapplications under the federal skilled worker (FSW) class - The applications weresubmitted between February 27, 2008 and June 26, 2010, when the eligibility for a FSWvisa was governed by a set of Ministerial Instructions (MI1), including a policy ofprocessing applications within 6-12 months - The applicants claimed that the MCI hadunreasonably delayed processing their applications (between 24-52 months) by accordinghigher priority and imposing different criteria on more recent applications - The FederalCourt held that mandamus was unnecessary as Gurung's application was being activelyprocessed - The other applicants cases, however, turned on their own individual facts -The court opined that because the Minister established a policy whereby thoseapplications would be prioritized and processed within 6-12 months, the longerprocessing time constituted a prima facie case of delay - Furthermore, the Minister'sauthority to set policy was not, in these circumstances, itself a satisfactory justificationfor the delay - See paragraphs 1 to 52.Administrative Law - Topic 2267Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation -The applicants sought mandamus compelling the immigration Minister (MCI) to processtheir permanent residence applications under the federal skilled worker (FSW) class - Theapplicants claimed that the MCI had unreasonably delayed processing their applicationsby according higher priority and imposing different criteria on more recent applications -The applicants argued that they had a legitimate expectation that their applications wouldbe processed on a first-in, first-out (FIFO) basis - The Federal Court rejected theapplicants' argument - There was nothing in the Immigration and Refugee Protection Actor the case law supporting a requirement of FIFO processing as a matter of proceduralfairness - See paragraphs 53 to 55.

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