Monday, 4 February 2013

Out of Time, Out of Luck: The Postal Acceptance Rule and Administrative Law

Canada's immigration system is bursting at the seams. One of the backlogs is in sponsorship applications by Canadian permanent residents and citizens of their parents and grandparents. The federal government's response was to institute, by way of ministerial instructions issued pursuant to s. 87 of the Immigration and Refugee Protection Act, a "temporary pause" in the acceptance of new applications.

In order to avoid a torrent of new applications, the federal government announced its change of policy on November 4, 2011, and made it effective the following day, November 5, 2011.  The Minister responsible explained this decision in the following terms:

… [A]s we redesign the program to make it sustainable, here's the challenge we have: if we leave the program open for applications during that period of consultation and redesign, we know what will happen - we will get absolutely flooded with a huge increase in applications. Because people will say “if the criteria might change, we need to get our application in right away.” And we’re very concerned about this possibility. This has happened before. Immigration consultants and lawyers will go to their clients and say “we're going to send your application in right now.” And then we'll go from 40,000 applications to 50 or 60 or 70,000, and we'll never be able to deal with the backlog.
The applicant in Lukaj v. Canada (Citizenship and Immigration), 2013 FC 8 learned of the change of policy and immediately sent off his application. The application was returned to him, however, with a note that it had been received after the November 5, 2011 deadline.
The applicant argued that the common law "postal acceptance rule" should have been applied by the respondent; the application should have been treated as received on November 4, 2011, when it was sent, not when it was received.

Crampton C.J. rejected this argument. He noted that the decision was based on Citizenship and Immigration Canada's interpretation of  the ministerial instructions (but, at paras. 12-14, considered it unnecessary to specify the standard of review). The framework for decision here was statutory, rather than contractual (at para. 18). Moreover, the applicant had no vested right to have his application treated by CIC:
[22]           In this statutory scheme, the right to sponsor a family member does not vest, accrue or begin to accrue until an affirmative decision is made in respect of the application (Kaur Gill v Canada (Minister of Citizenship and Immigration), 2012 FC 1522 (CanLII), 2012 FC 1522, at para 40. Until that time, an applicant simply has a hope that his or her application will be accepted.

[23]           Indeed, until that time, an applicant may not even have a right to have his or her application processed (Liang v Canada (Minister of Citizenship and Immigration), 2012 FC 758 (CanLII), 2012 FC 758, at paras 5 – 11 and 43). This is clearly contemplated by the plain language in subsection 87.3(4), which applies to applications and requests made on or after February 27, 2008 (Budget Implementation Act, 2008, SC 2008, s. 120). 
The applicant's argument that he had a legitimate expectation that his application would be treated as received when it was sent received similarly short shrift:
[26]           Given the foregoing, I disagree with Mr. Lukaj’s assertions that the scheme established by the IRPA and the Regulations constitute an “offer” which he accepted, and that he had a legitimate expectation that his application would be processed even though he knew it would not physically arrive until after November 5, 2011. I note that Justice Zinn dealt with a similar situation recently and concluded, as I have concluded, that “the applicant’s sponsorship application was required to have been mailed and received by CIC before November 5, 2011” (Vahit Esensoy v Canada (Minister of Citizenship and Immigration) 2012 FC 1343, at para 8 [Esensoy]).

[27]           I would simply add that it is settled law that sponsorship applications under the family class are considered to be “received” only when they are physically received, not when they are mailed (Hamid v Canada (Minister of Citizenship and Immigration), 2006 FCA 217 (CanLII), 2006 FCA 217, at paras 45‑47; Salhova v Canada (Minister of Citizenship and Immigration), 2010 FC 352 (CanLII), 2010 FC 352, at paras 15-10; Lim v Canada (Minister of Citizenship and Immigration), 2005 FC, at para 28; Castro v Canada (Minister of Citizenship and Immigration), 2005 FC 659 (CanLII), 2005 FC 659, at para 10). I note that the affidavit of Glen Bornais, Senior Analyst at CIC, dated July 1, 2012 [Bornais Affidavit], states, at paragraph 27, that this is also the CIC’s standard approach. This further undermines Mr. Lukaj’s position regarding his legitimate expectations (Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at para 26 [Baker]). This evidence was not contradicted by Mr. Lukaj.
Furthermore, the applicant's lack of a vested right meant that he had no right to be warned of the impending change:

[42]           As discussed above, Mr. Lukaj had no vested, accrued or accruing right to sponsor his parents. Nor did he have a right to have his application processed. In addition, he did not have a legitimate expectation that his application, which he knew would not be received by CIC until after the deadline established in the Ministerial Instruction, would be processed. 

[43]           Pursuant to subsection 87.3(2) of the IRPA, the Minister has, and had under the version of the IRPA that was in force at the time of the decision in 2011 that is the subject of this proceeding, broad statutory authority regarding the processing of sponsorship applications, including those referred to in subsection 13(1) (Esensoy, above, at paras 10-12).

[44]           As explained above, the Minister appears to have had legitimate and bona fide reasons for issuing the Ministerial Instructions and for doing so on very short notice. 
Finally, in dismissing the applicant's challenge to the substance of the regulations, Crampton C.J. relied on the conclusion of Zinn J. in Esensoy v. Canada (Citizenship and Immigration), 2012 FC 1343 that the minister had "the legislative authority to place a temporary moratorium on the filing of sponsorship applications" (at para. 19).

Lukaj is an interesting case on the relationship between the common law of contract and statutory decision-making schemes, to be filed along with Canada (Attorney General) v. Mavi, 2011 SCC 30 (CanLII), [2011] 2 SCR 504. 

UPDATE: John O'Dowd pointed me in the direction of a recent Irish Supreme Court case, Sulaimon v. Minister for Justice, 2012 IESC 63. Here, the minister's department had stubbornly insisted that the granting of permission to an individual to remain in Ireland "for two years until 07/07/2007" did not mean that the initial decision was taken on July 7, 2005, but rather did not become effective until the individual's passport was stamped on July 22. (The later date would have denied Irish citizenship to the applicant, the individual's infant child.) Hardiman J.'s judgment is worth reading. Here is a taste:
I consider that the decision to refuse this child a certificate of nationality and an Irish passport is not merely wrong but wrong-headed. It was justified by a bewildering display of unembarrassed casuistry. I use that term in its original sense of a process for resolving difficult individual cases by the inflexible application of what are alleged to be general rules, often involving a quibbling or evasive way of dealing with real difficulties...
Notwithstanding the appellant’s arguments, I reiterate that the phrase “permission to remain in the State for two years until 07/07/2007” means a permission to remain from the 7th July 2005 to the 7th July 2007. No rational person would maintain the contrary in any forum but a court of law. It is important for this court to assert that words in a statute, or in a bureaucratic decision, will be interpreted in their ordinary and natural meaning unless there is coercive reason to the contrary.

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