Friday, 3 May 2013

Out of Time, Back of the Line

What should a government do when its system for processing immigration applications has ground almost to a halt and is no longer fit for purpose?

The Canadian government tried reforming its "foreign skilled worker programme" on several occasions, to no avail. It ultimately enacted the following provision, s. 87.4 of the Immigration and Refugee Protection Act:
  •  (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.
Applications in other categories (such as family reunification) were unaffected. Only those who had applied to the foreign skilled worker programme saw their applications terminated. Some of them had been waiting years for their applicatiosn to be processed.

In Tabingo c. Canada (Citizenship and Immigration), 2013 FC 377, s. 87.4 was upheld against constitutional challenge and an attempt to narrow its scope.

Rennie J. held that the legislation was perfectly clear in its aims and did not violate the rule of law:
[37]           My conclusion on the issue of statutory interpretation is that section 87.4 terminates the applications at issue by operation of law.  The presumptions put forward by the applicants do not apply and there is no requirement for individualized adjudication.   Therefore, the application for mandamus must fail unless the legislation is unconstitutional or contrary to the Bill of Rights...
[50]           With the exception of criminal offences and sanctions there is no requirement that legislation be prospective, even though retrospective and retroactive legislation can overturn settled expectations and be perceived as unjust:  Imperial Tobacco, paras 69-72.  Whatever personal and economic opportunities a pending FSW application may represent to an applicant, it does not equate with, or possess the characteristics of an interest that would preclude its termination on the basis of the rule of law.  Here, Parliament has expressed a clear intention that section 87.4 apply retrospectively.  Though this may be perceived as unjust, it does not violate the rule of law.  
Given the general approach in Canada to judicial enforcement of the rule of law, this conclusion is unsurprising. The applicants made an imaginative argument that s. 87.4 envisaged individualized determinations of whether applications were terminated, but Rennie J.'s conclusion that s. 87.4 was clear in its terms dispensed with it. On appeal, it will doubtless be renewed.

Rennie J. also concluded that the legislation was consistent with the Charter of Rights and Freedoms. Indeed, even though the parties agreed that s. 7 of the Charter -- the protection of life, liberty and security of the person -- was engaged, he disagreed:
[78]           The respondent does not dispute either the applicants’ standing or the application of the Charter The parties appear to coalesce around the proposition that the FSW applications establish a sufficient nexus with Canada to extend the reach of sections 7 and 15The jurisprudence does not support this concession.  What is in issue involves the repercussions abroad of domestic legislation.  In this case, there is no question of the extra-territorial application of the Charter as an adjunct of the actions of Canadian officials abroad, nor is there, as I conclude on the evidence, non-compliant administration of the legislation.  The issue framed by this case is whether the protections provided by sections 7 and 15 reach foreign nationals, when residing outside of or beyond Canadian territory. 
This conclusion may be correct as a matter of precedent: the individuals affected by s. 87.4 do not fall into any of the extra-territorial categories recognized in the jurisprudence. But the federal government surely did not concede the point lightly. It would be very strange if the entire machinery of immigration law could violate Charter norms at will, just because immigration applicants are unlucky enough to find themselves outside the jurisdiction. Indeed, there is surely no question that Charter norms would apply to decision-makers in the processing of applications and in the termination of individual applications. To hold that Charter norms do not apply to a general termination of applications thus seems somewhat arbitrary. If that is what the s. 7 jurisprudence suggests, it may be necessary for the Supreme Court of Canada to revisit it.

Rennie J. went on to hold that s. 7 was not engaged on the facts of the cases before him:
[99]           I accept that the applicants have experienced stress and hardship; I also accept that the circumstances of some of the applicants are compelling.  However, immigration is not of such an intimate, profound and fundamental nature as to be comparable with a woman’s right of reproductive choice, or the freedom of parents to care for their children.  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 section 7.  While it may have life-altering consequences, the possibility of immigrating to Canada as a successful FSW applicant does not engage life or liberty interests. 

[100]      The voluntary character of the applicants’ decision to apply for a FSW visa, and to voluntarily put major life decisions in abeyance pending the outcome, is determinative of the question as to whether security of the person is engaged.  Voluntariness distinguishes the applicants’ situation from that in Rodriguez.  Sue Rodriguez suffered from amyotrophic lateral sclerosis, a terminal illness.  She challenged the law against assisted suicide so that she could die at the time and in the manner of her choosing.  The Supreme Court of Canada accepted that she would slowly deteriorate, become dependent and lose her dignity.  The hardship she experienced is incomparable in extent and dimension to that experienced by the applicants, and more importantly, she had no choice.
Rennie J. is surely correct that the ability to immigrate is of a different nature to the other interests that have been recognized as triggering s. 7. And to hold that the psychological stress of waiting on an immigration application triggers s. 7 would be to risk opening the floodgates (you can goggle at some of Immigration Canada's processing times here).

But his reliance on voluntariness seems misplaced in light of the Supreme Court of Canada's decision in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44. There, the federal government's argument that harm to drug users was a result of personal choices was roundly rejected (see paras. 97-106). Here, the decision to incur the significant financial and emotional costs of making an immigration application, often from a position of vulnerability, should not be gainsaid.

Rennie J. also dismissed the applicants' argument that they had been discriminated against, in violation of s. 15 of the Charter.

This is an interesting and important judgment. One would have to have a heart of stone not to feel sorry for the applicants in this case: their applications were cut short in an unpleasant fashion. But despite my quibbles with some aspects of Rennie J.'s decision, it is true that the applicants do not fall neatly into Charter-protected categories. Unfair legislation is not always unconstitutional. Let us just hope that the new machinery put in place to process immigration applications works more smoothly than its flawed predecessor.

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