2014 FC 596, 2014 FC 596

IMM-2621-13 2014 FC 596 Baoxian Jia ( Applicant ) v. Minister of Citizenship and Immigration ( Respondent ) indexed as: Jia v. Canada (Citizenship and Immigration) Federal Court, Gleason J. — Toronto, June 4; Ottawa, June 23, 2014. Citizenship and Immigration — Status in Canada — Permanent Residents — Consolidated judicial review applications seeking mandamus order requiring respondent to process applications under federal government Immigrant Investor Program (IIP), class of “economic immigrants” provided for in Immigration and Refugee Protection Regulations s. 90 — Application of principal applicant (Mr.

Jia), submitted in December 2009, not processed due to large number of similar applications, certain changes in way Citizenship and Immigration Canada (CIC) processed applications — Mr. Jia arguing that had Minister not changed processing priorities, application would have been granted — Visa application of Mr.

Jia, of thousands of others applying under IIP, abolished by Immigration and Refugee Protection Act (Act or IRPA), s. 87.5 , coming into force June 19, 2014 — Main issue whether mandamus order should have been granted — IRPA affording Minister right and duty to assess immigration needs of Canada, set number of immigrants accepted — Would-be immigrants having no right to force Minister to set any particular quota for any economic class — Extent of duty owed by Minister in this case processing applications within reasonable time period — Delays faced by applicants reasonable — Statements made to applicants by CIC falling well short of being clear enough to found contractual entitlement, thus, statements not giving rise to claim for legitimate expectation — Applicants not establishing presence of requisite criteria entitling them to mandamus order — Even if this not case, mandamus equitable remedy — Not equitable to grant requested relief, as such relief would leap-frog applicants over other applicants — Two questions certified — Applications dismissed.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Applicants seeking mandamus order requiring respondent to process applications under federal government Immigrant Investor Program (IIP), class of “economic immigrants” provided for in Immigration and Refugee Protection Regulations , s. 90 — In context of applications, applicants arguing Minister’s alleged delay in processing applications violated s. 7 Charter right — No legitimate expectation of procedural fairness under s. 7 of Charter breached — No s. 7 interest engaged — Decision to immigrate voluntary — No psychological distress giving rise to protected interest under s. 7 of Charter, accompanied, caused by physical consequences imposed by legislation — Ability to immigrate, particularly as member of economic class, not among personal autonomy choices engaging s. 7.

Constitutional Law — Charter of Rights — Equality Rights — Applicants seeking mandamus order requiring respondent to process applications under federal government Immigrant Investor Program (IIP), class of “economic immigrants” provided for in Immigration and Refugee Protection Regulations , s. 90 — In context of applications, applicants arguing Minister’s alleged delay in processing applications violated s. 15 Charter right — Fact that applicants suffered differential—adverse —treatment based on intended destinations in Canada because subject to longer queues, less favourable treatment than investor immigrants choosing to settle in Quebec, not violation of s. 15 because differential treatment not based on ground protected under s. 15.

These were consolidated applications for judicial review seeking a mandamus order to require the respondent to process their applications under the federal government’s Immigrant Investor Program (IIP), a class of “economic immigrants” provided for in

section 90 of the Immigration and Refugee Protection Regulations (the Regulations). The applicant in the principal application (Mr. Jia) is from China. In December 2009, he made an application to the Canadian visa post in Hong Kong, seeking admission to Canada as a member of the investor class, a class of “economic immigrants” provided for in

section 90 of the Regulations . His application was not processed due to the large number of similar applications from other would-be investor class immigrants and also, possibly, as a result of certain changes to the way in which Citizenship and Immigration Canada (CIC) processed applications under the IIP. These changes resulted in applications like that of Mr.

Jia being slowed down in the processing queue because the respondent, the Minister of Citizenship and Immigration (the Minister or the respondent), adopted amended processing criteria, which provided for the concurrent processing of older applications—like the applicant’s—at the same time as newer applications filed under the amended and more demanding criteria. Mr.

Jia argued that if the Minister had not changed the processing priorities or had not set the quota for applications at artificially low levels, his application would have been granted by now and he would have been landed as a member of the investor class. Mr. Jia’s visa application, and those of thousands of others who have applied under the IIP, were abolished by

section 87.5 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the Act or IRPA), which came into force on June 19, 2014, and which operates to terminate all visa applications by foreign nationals under the investor or entrepreneur classes that had not met certain requirements as of February 11, 2014. Mr. Jia originally sought an order in the nature of mandamus requiring the Minister to process his application under the IIP within the following 12 months. He maintained his request for mandamus , but later, in light of

section 87.5 of the IRPA, sought a mandamus order to require the Minister to process his visa application irrespective of the enactment of that section. The applicants further argued that the Minister’s alleged delay in processing their applications violated their rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the Charter) (or other more broadly cast claims to equality) and that the alleged “disproportionate favouring of Quebec applications” violated what the applicants term “the federalism principle”.

The principal issues were whether a mandamus order should have been granted, whether the applicants’ Charter rights had been breached and whether the respondent had otherwise breached the Constitution in its handling of the application.

Held , the applications should be dismissed. In matters of immigration, the IRPA affords the Minister the right—and duty—to assess Canada’s immigration needs and to set the number of immigrants to be accepted as members of the various economic classes each year. This is made clear by the entire scheme of the Act and, in particular, by sections 11, 12, 87.3 and subsection 94(2).

In this regard, it is noteworthy that sections 11 and 12 of the IRPA, the provisions establishing the possibility of immigration as a member of an economic class, are cast in permissive terms such that there is no absolute right to the issuance of a visa following the mere fact of having made an application. Would-be immigrants have no right to force the Minister to set any particular quota for any economic class. This determination is in keeping with long-established principles, which hold that no one possesses a right to immigrate.

The Minister is entitled to set quotas per immigrant class and to change processing priorities for pending immigration applications. Thus, the extent of the duty owed by the Minister in this case was to process the applicants’ IIP applications within a reasonable period of time. When evaluating whether a delay in processing a visa application has been unreasonable, the Court must have regard to all pertinent circumstances. These include the volume of applications received and the priorities and targets set by the Minister under the IRPA .

The reasonableness of the delay “must be informed by a full understanding of where the [a]pplicants’ applications fit within the immigration scheme”, which may legitimately provide for the slower processing of certain types of applications. The delays faced by the applicants in these matters were not unreasonable. There was no evidence that any of their applications had been taken out of its proper place in the queue or otherwise ignored by the respondent.

The delay in processing was simply a function of the huge numbers of applications received and the quotas and processing priorities that the Minister legitimately set under the authority afforded him under the Act and Regulations. The statements made to the applicants in form letters, manuals or websites simply do not give rise to any representation that would bind the respondent in respect of how long IIP applications would be in process or as to the priority within which they would be considered.

In the first place, a visa applicant could have had no basis to assume that quotas or processing priorities would remain unchanged. It is well settled that legislation may have a retrospective effect if it so provides and may remove or change settled expectations. Secondly, there is no basis to conclude that any representations that should be viewed as binding were made to the applicants. The acknowledgement of receipt letters indicated that the processing estimates were subject to change. As for the 2006 Operational Instruction, it did not promise any processing time whatsoever.

There was no finding of any representation made to the applicants that they would be entitled to rely upon as to when their applications would be processed and certainly no representation that their applications would be processed more quickly than they have been or in any particular priority. There was no unreasonable delay in the processing of the applicants’ IIP applications. While there is some support in the case law for the notion that an administrative actor may be required to follow a procedure it has promised to follow, the party seeking to enforce the promise must show it to have been clearly made.

Generally speaking, government representations will be considered sufficiently precise for purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement. The statements made by CIC in these matters fell well short of being clear enough to found a contractual entitlement. Thus, these statements did not give rise to any claim for breach of legitimate expectations. Thus, the applicants did not establish the presence of the requisite criteria that would have entitled them to a mandamus order.

Even if this had not been the case, mandamus is an equitable remedy. Here, it would not have been equitable to grant the requested relief—even if there had been a basis for doing so—as such relief would have leap-frogged the applicants over other IIP applicants who had not made applications to the Court. As for claims under the Charter , there is significant jurisprudence of this Court and of the Federal Court of Appeal that holds that foreign citizens outside Canada have no rights under the Charter in respect of activities that occur outside of Canada.

In this case there was no need to decide whether the Charter extended rights to the applicants as, even if they possessed such rights, none had been violated in the treatment of their visa applications. With respect to the applicants’ argument under

section 7 of the Charter , according to which this

section guarantees them procedural fairness, which would include holding the Minister to the applicants’ legitimate expectations, no such expectations were violated. In this case, no

section 7 interest was engaged. The applicants’ decision to seek to immigrate to Canada was a voluntary one. This was not a case in which psychological distress that was found to give rise to a protected interest under

section 7 of the Charter was accompanied and caused by physical consequences imposed by legislation. 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 applicant does not engage life or liberty interests. The argument advanced under

section 15 of the Charter that the applicants suffered differential—and adverse—treatment based on their intended destinations in Canada because they were subject to longer queues and less favourable treatment than investor immigrants who chose to settle in Quebec, was not accepted. Even assuming that such was the case, this differential treatment did not give rise to a violation of

section 15 of the Charter because it was not based on a ground which is protected under

section 15 . The following questions were certified, namely (1) whether individuals who have been subject to a lengthy waiting period prior to the assessment of their immigration applications under the investor class, due to the annual targets and Ministerial Instructions made under

section 87.3 of the IRPA , are entitled to an order in the nature of mandamus to compel their processing, and (2) whether such a delay violates the applicants’ rights under either

section 7 or 15 of the Charter or the rule of law. STATUTES AND REGULATIONS CITED Budget Implementation Act, 2008 , S.C. 2008, c. 28, ss. 118, 120 . Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 6, 7 , 15 .

Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 36(2). Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3, 11, 12, 74, 87.3, 87.5, 94(2). Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 88(1), 90, 102–104, 107–109. Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19, s. 706, 709. Regulation Respecting the Selection of Foreign Nationals, R.R.Q. 1981, c. I-0.2, r. 4. CASES CITED applied: Tabingo v. Canada (Citizenship and Immigration), 2013 FC 377, [2014] 4 F.C.R. 150 distinguished: Dragan v.

Canada (Minister of Citizenship and Immigration), 2003 FCT 211, [2003] 4 F.C. 189; Liang v. Canada (Citizenship andImmigration), 2012 FC 758, [2014] 1 F.C.R. 352; R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30, (1988), 44 D.L.R. (4th)385; Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519, (1993), 107 D.L.R. (4th) 342;Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; Wilson v. British Columbia (Medical Services Commission)(1988), (BC CA), 53 D.L.R. (4th) 171, [1989] 2 W.W.R. 1 (B.C.C.A.). considered: Apotex Inc. v.

Canada (Attorney General), (FCA), [1994] 1 F.C. 742, (1993), 18 Admin. L.R. (2d) 122 (C.A.);Conille v. Canada (Minister of Citizenship and Immigration), (FC), [1999] 2 F.C. 33, (1998), 15 Admin. L.R. (3d)157 (T.D.); Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, 52 Admin. L.R. (4th) 118; He v. Canada(Citizenship and Immigration), 2014 FC 92, 22 Imm. L.R. (4th) 324; Zhang v. Canada (Citizenship and Immigration), 2014 FC 93, 65Admin. L.R. (5th) 214; Fang v. Canada (Citizenship and Immigration), 2014 FC 94, 65 Admin. L.R. (5th) 259; Jiang v.

Canada(Citizenship and Immigration), 2014 FC 95; Kearney v. Canada (Citizenship and Immigration), 2014 FC 96, 65 Admin. L.R. (5th) 244;Wurm v. Canada (Citizenship and Immigration), 2014 FC 97, 65 Admin. L.R. (5th) 290; Medovarski v. Canada (Minister of Citizenshipand Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539; Chiarelli v.Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711, (1992), 90 D.L.R. (4th) 289; Canada(Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504; R. v.

Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Canada (Justice) v.Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125; Corbiere v. Canada (Minister of Indian and Northern Affairs), (SCC),[1999] 2 S.C.R. 203, (1999), 173 D.L.R. (4th); R. v. Turpin, (SCC), [1989] 1 S.C.R. 1296, (1989), 48 C.C.C. (3d) 8. referred to: Agama v. Canada (Citizenship and Immigration), 2013 FC 135, 427 F.T.R. 127; Mazarei v. Canada (Citizenship and Immigration), 2014FC 322, 24 Imm. L.R. (4th) 325; Mobasher v. Canada (Citizenship and Immigration), 2014 FC 399; British Columbia v. ImperialTobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193; Zeng v. Canada (Attorney General), 2013 FC 104, 50 Admin. L.R. (5th) 210;Kinsel v. Canada (Citizenship and Immigration), 2012 FC 1515, [2014] 2 F.C.R. 421; Toronto Coalition to Stop the War v. Canada(Public Safety and Emergency Preparedness), 2010 FC 957, [2012] 1 F.C.R. 413; Slahi v. Canada (Justice), 2009 FC 160, 186 C.R.R.(2d) 160; Amnesty International Canada v. Canada (Chief of the Defence Staff), 2008 FC 336, [2008] 4 F.C.R. 546; Winner v.

S.M.T., (SCC), [1951] S.C.R. 887, [1951] 4 D.L.R. 529; Singh et al. v. Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177, (1985), 17 D.L.R. (4th) 422; Canadian Council of Churches v. Canada, (FCA), [1990]2 F.C. 534, (1990), 68 D.L.R. (4th) 197 (C.A.); Ruparel v. Canada (Minister of Employment and Immigration), (FC), [1990] 3 F.C. 615, (1990), 36 F.T.R. 140 (T.D.); Lee v. Canada (Minister of Citizenship and Immigration), , 126F.T.R. 229 (F.C.T.D.); Deol v. Canada (Minister of Citizenship and Immigration), 2001 FCT 694, 211 F.T.R. 12; Canada (AttorneyGeneral) v.

Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44,[2000] 2 S.C.R. 307; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, (1989), 56 D.L.R. (4th) 1;Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497, (1999), 170 D.L.R. (4th) 1;Gosselin v. Québec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Alberta v.Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Ermineskin Indian Band and Nation v.

Canada, 2009 SCC 9,[2009] 1 S.C.R. 222; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Kanthasamy v. Canada (Citizenship andImmigration), 2014 FCA 113, [2015] 1 F.C.R. 335; Boni v. Canada (Minister of Citizenship and Immigration), 2006 FCA 68, 61 Admin.L.R. (4th) 21; Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, 36 Imm. L.R. (3d) 167; Liyanagamage v.Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.); Di Bianca v. Canada (Minister of Citizenship andImmigration), 2002 FCT 935, 224 F.T.R. 168.

AUTHORS CITED Citizenship and Immigration Canada. Operational Bulletin 252 – December 2, 2010. “Regulatory and Administrative Changes to theFederal Immigrant Investor Program”, online: <http://www.cic.gc.ca/english/resources/manuals/bulletins/2010/ob252.asp>. Citizenship and Immigration Canada. Operational Bulletin 566 – February 12, 2014. “Federal Immigrant Investor Program andEntrepreneur Program Applications: Budget 2014”, online: <http://www.cic.gc.ca/english/resources/manuals/bulletins/2014/ob566.asp>.

CONSOLIDATED applications for judicial review seeking a mandamus order to require the respondent to process their applicationsunder the federal government’s Immigration Program, a class of “economic immigrants” provided for under s. 90 of the Immigration and

Refugee Protection Regulations . Applications dismissed. APPEARANCES Rocco Galati and Timothy Leahy for applicants. Lorne McClenaghan and Daniel Engel for respondent. SOLICITORS OF RECORD Rocco Galati , Toronto, for applicants. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by [ 1 ] Gleason J.: Mr. Jia is from China and wants to immigrate to Canada. In December of 2009, he made an application to the Canadian visa post in Hong Kong, seeking admission to Canada as a member of the investor class, a class of economic immigrants provided for in

section 90 of the Immigration and Refugee Protection Regulations , SOR/2002-227 (the Regulations). His application has not been processed due to the large number of similar applications from other would-be investor class immigrants and also, possibly, as a result of certain changes to the way in which Citizenship and Immigration Canada (CIC) processed applications under the federal Immigrant Investor Program (IIP). These changes resulted in applications like that of Mr.

Jia being slowed down in the processing queue because the respondent, the Minister of Citizenship and Immigration (the Minister or the respondent), adopted amended processing criteria, which provided for the concurrent processing of older applications—like Mr. Jia’s—at the same time as newer applications filed under amended and more demanding criteria. [ 2 ] Mr. Jia argues that if the Minister had not changed the processing priorities or had not set the quota for applications at artificially low levels, his application would have been granted by now and he would have been landed as a member of the investor class.

He therefore commenced this application for judicial review, seeking an order in the nature of mandamus to direct the respondent to process his IIP application. [ 3 ] Mr. Jia’s visa application, and those of thousands of others who have applied under the IIP, were just abolished by the newly enacted

section 87.5 [as enacted by S.C. 2014, c. 20, s. 303 (coming into force June 19, 2014)] of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the Act or IRPA), which came into force late last week, and which operates to terminate all visa applications by foreign nationals under the investor or entrepreneur classes that had not met certain requirements as of February 11, 2014. [ 4 ] In this application for leave and judicial review, Mr. Jia originally sought an order in the nature of mandamus , requiring the Minister to process his application under the IIP within the following 12 months. He maintains his request for mandamus , but now, in light of

section 87.5 of the IRPA , seeks a mandamus order to require the Minister to process his visa application irrespective of the enactment of that section. [ 5 ] At the time Mr. Jia was granted leave to commence this application for judicial review, there were 94 other virtually identical applications filed by Mr. Leahy on behalf of other similarly-situated applicants who had made applications under the IIP. In their applications for leave and judicial review to this Court, these 94 other applicants also sought orders in the nature of mandamus to compel the processing of their visa applications.

By the order dated March 7, 2014, my colleague, Justice Mactavish, granted leave in all 95 applications and consolidated them for hearing with Mr. Jia’s application. A list of the other 94 files which were so consolidated, and to which these reasons apply, is attached as Appendix “A” to these reasons. [ 6 ] The vast majority of the 95 applicants in these files, like Mr. Jia, made their IIP applications to the visa post in Hong Kong. They made these applications on various dates between August 27, 2008 and June 28, 2010, and their applications have not been processed for the same reasons as in Mr.

Jia’s case. [ 7 ] In addition to the Hong Kong applicants, the consolidated applications also include seven applications made by individuals whose IIP applications were sent from Damascus to the Ankara visa post for processing, a single application made at the visa post in New Delhi (India), another made in Pretoria, South Africa and a final application from Islamabad that was sent to the visa post in London, U.K. for processing.

These applications were made over the period from October 29, 2007 to June 27, 2010 and have likewise not been finally ruled upon. [ 8 ] In addition to these 95 files, the Court now has pending before it over a thousand other applications for leave and judicial review filed by Mr. Leahy on behalf of other IIP applicants in which they also seek orders in the nature of mandamus to require the Minister to process their visa applications in spite of the

section 87.5 of the IRPA . By order of Justice Mactavish dated April 30, 2014, these reasons apply mutatis mutandis (that is, with the necessary modifications) to each of these additional applications. [ 9 ] During pre-hearing procedures, the parties agreed that these 95 consolidated files would be determined based on the evidence filed in five lead files, one from each of the implicated visa posts, as there is no meaningful difference between the files from each post. The lead files agreed to are: 1. Jia v. Canada (Citizenship and Immigration) , IMM-2621-13 for Hong Kong; 2. Bansal v.

Canada (Citizenship and Immigration) , IMM-2503-13 for New Delhi; 3. Gholampour v. Canada (Citizenship and Immigration) , IMM-2508-13 for London; 4. Nasseri Karimi Vand v. Canada (Citizenship and Immigration) , IMM-2510-13 for Ankara; and

5. Stopforth v. Canada (Citizenship and Immigration) , IMM-3892-13 for Pretoria. [ 10 ] After all the evidence was filed and only two weeks before the scheduled hearing date, the applicants served a notice of constitutional question, in which they gave notice that they intended to argue that the Minister’s alleged delay in processing their applications violated their rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter) (or other more broadly cast claims to equality) and that the alleged “disproportionate favouring of Quebec applications” violated what the applicants term “the federalism principle”. [ 11 ] Although the respondent objected to the late service of the notice, it made relatively detailed representations on the constitutional issues in both its further memorandum of argument and during oral submissions.

I have decided that it is appropriate to rule on the constitutional issues, despite the late service of the notice, to bring closure to these matters. Thus, the issues that require determination are as follows: 1. Should an order in the nature of mandamus be granted in any of the files; 2. Have the applicants’ Charter rights been breached; 3. Has the respondent otherwise breached the Constitution in its handling of these applications; and 4. Should any question be certified under

section 74 of the IRPA to provide for the possibility of appeal to the Court of Appeal in these files? [ 12 ] For the reasons set out below, I have determined that the applicants are not entitled to an order in the nature of mandamus as they have not established that the Minister has breached any duty owed to them because there has not been an unreasonable delay in processing their applications in the circumstances. Moreover, even if this were not so, it nonetheless would be inappropriate to grant them the remedy they seek because it would be inequitable to do so.

Nor has the respondent breached any legitimate expectations the applicants might have had regarding how or when their visa applications would be processed. Thus, the applicants are not entitled to relief in the nature of mandamus . [ 13 ] I have also concluded that, even if the applicants possess rights under the Charter (which they may well not), no rights under either

section 7 or 15 of the Charter have been violated by the respondent in these matters. I have further determined that the amorphous claims advanced as part of the alleged requirements of federalism or as part of the rule of law are without merit. I have thus concluded that these applications will be dismissed. [ 14 ] Finally, in light of the high degree of agreement between the parties on the issue of certification, and the fact that comparable questions to those suggested by the parties have recently been certified by two of my colleagues in very similar matters, I have decided it appropriate to certify two questions under

section 74 of the IRPA . [ 15 ] Prior to analysing these issues, it is necessary to review the factual background to these applications and to also review the legislation that applies to them, as it is different from that which was in place when the key authorities relied on by the applicants were decided. I. Background [ 16 ] The evidence before me reveals that the federal investor program has been in existence for several years.

At the point at which each of the applicants in the 95 consolidated files applied under the IIP, an individual needed to have business experience, a net worth of $800,000 and the capacity to invest $400,000 in order to qualify as an investor. For those who applied under the IIP prior to December 1, 2010 (as all these applicants did), if and when their applications were accepted, there was a requirement to extend a five-year $400,000, interest-free loan to the Government of Canada, which would then distribute funds to participating provinces and territories to fund economic development and growth.

None of the applicants was called upon to put forward funds as an investor because none of their files had been progressed to the point where investment was required. [ 17 ] The evidence also indicates that each year, under the authority delegated to him under the IRPA , the Minister set a quota or target for the number of IIP immigrants that Canada would accept.

This quota was established on a world-wide basis, and the total number so set was then allocated among various visa posts based on factors such as the number of pending applications at the post. [ 18 ] In 2006, the global target for the IIP was set at 1 015 investors. From 2007 to 2010, the target ranged between 2 000 and 3 015, and in 2011 and 2012 the world-wide target was set at 1 500 investors.

The evidence further demonstrates that for 2006 to 2012 (with the exception of 2007), the respondent met or exceeded its global target and processed the projected number (or more) of IIP applications. [ 19 ] Immigrants under the IIP were accepted for settlement outside of Quebec. A separate program—regulating a separate class of immigrants—applies to investors who wish to settle in Quebec, the Quebec Investor Program (QIP) (see Regulation Respecting the Selection of Foreign Nationals , R.R.Q. 1981, c. I-0.2, rule 4, in contrast to sections 102–104 and 107–109 of the Regulations ).

Separate targets are set by the province of Quebec (in consultation with federal representatives) for the QIP, which, generally speaking, appear to have been higher than 23 percent of the IIP targets (or the rough percentage of the Canadian population that resides in Quebec). [ 20 ] The investor program became exceedingly popular, and by 2010 (if not earlier) thousands of applications were received under the IIP, creating large backlogs of unprocessed applications at many visa posts.

As a result, over the years from 2008 to date, a number of legislative amendments were made and a number of administrative measures taken with a view to reducing and eliminating the backlog. II. Relevant legislation [ 21 ] Dealing first with the pertinent legislation, copies of all relevant provisions are annexed in full in Appendix “B” to these reasons.

Thus, I review below only the most salient provisions. [ 22 ] The first of them is

section 3 of the IRPA , which sets out the objectives of the Act.

At all times material to these applications, these included permitting “Canada to pursue the maximum social, cultural and economic benefits of immigration” (paragraph 3(1)( a )); enriching and strengthening “the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada” (paragraph 3(1)( b )); supporting “the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada” (paragraph 3(1)( c )); and supporting “by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces” (paragraph 3(1)( f )). [ 23 ] Subsection 11(1) of the IRPA , which has been unchanged since the date these 95 applicants applied under the IIP, provides the statutory authority for the issuance of visas.

It provides that a foreign national must, before entering Canada, “apply to an officer for a visa or for any other document required by the regulations.” The subsection then goes on to state that a visa may be issued if a visa officer is satisfied that the applicant is not inadmissible and meets the requirements of the Act. [ 24 ]

Section 12 of the IRPA , which has likewise been unchanged since the date these 95 applicants applied under the IIP, provides for classes of immigrants who may be selected as permanent residents, establishing the family, economic and refugee classes.

With respect to the economic class (of which the investor class is a sub-class), subsection 12(2) of the IRPA states that “[a] foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.” [ 25 ] Subsection 94(2) of the IRPA , provides the Minister the authority—and responsibility—to report the number of foreign nationals who became permanent residents in the preceding year, and the number projected to become permanent residents in the following year. [ 26 ] On June 18, 2008, Parliament enacted the Budget Implementation Act, 2008 , S.C. 2008, c. 28 (the BIA), which added [at

section 118 ]

section 87.3 to the IRPA . The then-new

section 87.3 , which applied to numerous types of visa applications including applications for the various economic classes, provided in part as follows: 87.3 …. Attainment of immigration goals

(2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada. Instructions

(3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions (

a) establishing categories of applications or requests to which the instructions apply; (

b) establishing an order, by category or otherwise, for the processing of applications or requests; (

c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and (

d) providing for the disposition of applications and requests, including those made subsequent to the first application or request. Compliance with instructions

(4) Officers and persons authorized to exercise the powers of the Minister under

section 25 shall comply with any instructions before processing an application or request or when processing one. If an application or request is not processed, it may be retained, returned or otherwise disposed of in accordance with the instructions of the Minister. … Clarification

(7) Nothing in this

section in any way limits the power of the Minister to otherwise determine the most efficient manner in which to administer this Act . [ 27 ] Importantly,

section 120 of the BIA stated: Application

Section 87.3 of the Immigration and Refugee Protection Act applies only to applications and requests made on or after February 27, 2008. [Boldface in original.] [ 28 ] Thus, prior to being further amended in the manner detailed below,

section 87.3 of the IRPA did not apply to visa applications filed prior to February 27, 2008. [ 29 ] On June 29, 2012, the Jobs, Growth and Long-term Prosperity Act , S.C. 2012, c. 19 was granted royal assent. This omnibus bill amended

section 87.3 of the IRPA to specifically provide the Minister authority to give Ministerial Instructions with respect to the processing of applications by “establishing conditions, by category or otherwise, that must be met before or during the processing of an application or request” (paragraph 87.3(3)( a.1 )) and providing that a Ministerial Instruction may, “if it so provides, apply in respect of pending applications or requests that are made before the day on which the instruction takes effect” (subsection 87.3(3.1)). These provisions came into force upon royal assent, that is, on June 29, 2012. Thus, unlike the first iteration of

section 87.3 in force prior to June 29, 2012, the amended

section 87.3 specifically foresaw that Ministerial Instructions could apply retrospectively to pending applications. [ 30 ] In addition, this legislation added subsection (3.2) to

section 87.3 of the IRPA . Subsection (3.2) provides that instructions given under paragraph 87.3(3) ( c ) “may provide that the number of applications or requests, by category or otherwise, to be processed in any year may be set at zero.” Finally,

section 709 of the Jobs, Growth and Long-term Prosperity Act repealed

section 120 of the BIA , removing any doubt as to the potential for Ministerial Instructions to apply to visa applications that were filed prior to February 27, 2008.

[ 31 ]

Section 87.3 has been modified a few more times by subsequent budget legislation, but those changes were minor and are not material to this case. As

section 87.3 of the IRPA is critical to these applications, it is reproduced, in full. As currently constituted, it provides: Application 87.3

(1) This

section applies to applications for visas or other documents made under subsections 11(1) and (1.01), other than those made by persons referred to in subsection 99(2), to sponsorship applications made under subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada, to applications for work or study permits and to requests under subsection 25(1) made by foreign nationals outside Canada. Attainment of immigration goals

(2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada. Instructions

(3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions (

a) establishing categories of applications or requests to which the instructions apply; ( a.1 ) establishing conditions, by category or otherwise, that must be met before or during the processing of an application or request; (

b) establishing an order, by category or otherwise, for the processing of applications or requests; (

c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and (

d) providing for the disposition of applications and requests, including those made subsequent to the first application or request. Application

(3.1) An instruction may, if it so provides, apply in respect of pending applications or requests that are made before the day on which the instruction takes effect. Clarification

(3.2) For greater certainty, an instruction given under paragraph (3)(

c) may provide that the number of applications or requests, by category or otherwise, to be processed in any year be set at zero. Compliance with instructions

(4) Officers and persons authorized to exercise the powers of the Minister under

section 25 shall comply with any instructions before processing an application or request or when processing one. If an application or request is not processed, it may be retained, returned or otherwise disposed of in accordance with the instructions of the Minister. Clarification

(5) The fact that an application or request is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or other document, or grant the status or exemption, in relation to which the application or request is made. Publication

(6) Instructions shall be published in the Canada Gazette . Clarification

(7) Nothing in this

section in any way limits the power of the Minister to otherwise determine the most efficient manner in which to administer this Act . III. Relevant Regulations and Ministerial Instructions [ 32 ] As noted, prior to December 1, 2010, subsection 88(1) of the Regulations required investor class applicants to demonstrate business experience, possess a net worth of $800,000 and provide a five-year interest-free loan to the government in the amount of $400,000. Effective December 1, 2010, the net worth requirement was increased to $1.6 million and the interest-free loan to $800,000.

The increased monetary requirements set out in subsection 88(1) of the Regulations applied only to IIP applications filed on or after December 1, 2010 and thus do not impact any of the applicants in these applications, who all made their IIP applications prior to that date. [ 33 ] The Ministerial Instructions [MI] issued under

section 87.3 of the IRPA , however, did apply to the applicants’ visa applications. The first (MI1), in force from November 29, 2008 to June 25, 2010, pertained largely to federal skilled worker applications. With respect to investor class applications, MI1 merely provided that they would be “placed into processing according to existing priorities”. [ 34 ] MI1 was replaced with a second Ministerial Instruction (MI2) on June 26, 2010.

It provided for an administrative pause in the intake of new IIP applications, extending until the coming into force of the regulatory amendments to the definition of “investor” and “investment”, which were promulgated on December 1, 2010. MI2 also foresaw that once the administrative pause was lifted, IIP applications filed under the “old” and “new” regulatory requirements would be processed concurrently.

MI2 provides in this regard that “federal Immigrant Investor applications received on or after the coming into force of the proposed regulatory amendments … shall, as a category, be processed concurrently with those federal applications received prior to the administrative pause in a ratio consistent with operational requirements”. [ 35 ] The next Ministerial Instruction, in force as of July 1, 2011, set a cap of 700 new federal immigrant investor applications that would be processed each year.

For purposes of calculating the cap, this Instruction provided that the “year” ran from July 1 to June 30. [ 36 ] The next relevant Ministerial Instruction, which the respondent has termed MI3 in its materials, came into force as of July 1, 2012 and established a second administrative pause on the acceptance of IIP applications, providing that none would be accepted on or subsequent to July 1, 2012.

This pause has not been lifted, and, indeed, was confirmed in the subsequent Ministerial Instructions, issued in January 2013, which provide that the pause on acceptance of new IIP applications remains in force “until further notice”. [ 37 ] The impact of these various instructions is as follows. [ 38 ] First, no new investor class applications have been accepted as of July 2012. This fact did not impact the applicants in these

matters as the administrative pause merely forestalled new would-be immigrants from making applications under the IIP as of July 2012. [ 39 ] Second, from December 2010 forward, applications filed prior to that date were processed concurrently with new applications filed between December 2010 and July 2012 under the enhanced regulatory criteria.

This change in processing priorities impacted the applicants as the respondent ceased its former “first-in, first-out” processing of IIP applications in favour of concurrent processing of “old” applications (like the applicants’) and “new” applications filed between December 2010 and July 2012. IV. Operational Instructions and Bulletins [ 40 ] CIC has issued various operational instructions or bulletins over the years, providing further guidance as to the manner in which investor class applications are to be processed.

It is common ground between the parties that these operational instructions and bulletins are available online and are frequently consulted by applicants, immigration consultants and lawyers. [ 41 ] The first relevant Operational Instruction, dated June 8, 2006, was drafted before the large influx of IIP applications.

It introduced the Simplified Application Process for IIP applications and provided as follows regarding the processing of such applications: The Processing Stage: Visa offices must put into place bring forward systems so as to identify needed Federal Economic cases 4-6 months before the visa office will assess the case. At that time, the applicant is to be sent a standard request for all supporting documentation, that is, a list similar to that sent with the Simplified Application Acknowledge of Receipt, plus, if necessary, an updated IMM8 and any needed schedules.

The applicant should be provided with 4 months to submit the supporting documentation, and the file marked to be brought forward in 4-5 months. Because visa offices will therefore be able to manage the volume of incoming “completed” applications, it is reasonable for applicants to expect assessment to begin immediately. It is expected that visa offices will normally approve (pending any needed verifications), refuse, or convoke to interview within several weeks of the end of the 4-month document request period and/or of receiving the supporting documentation.

If the office finds it is unable to do so, they should reduce the volume of cases being asked to provide supporting documents, until the correct flow is established. [ 42 ] On December 2, 2010, another Operational Bulletin was issued, Operational Bulletin 252 [“Regulatory and Administrative Changes to the Federal Immigrant Investor Program”].

After detailing the requirement to process IIP applications filed prior to December 2010 concurrently with those filed after that date, this Bulletin stated that: As a general rule, visa offices should process applications under the federal IIP in a 2:1 case processing ratio of old inventory applications to new applications received on or after December 1, 2010.

The concurrent case processing ratio of 2:1 is provided as a guideline only; this ratio may change over time in accordance with operational requirements and may not apply equally to all visa offices depending on the volume of investor class applications processed by a given visa office. [ 43 ] Finally, in February 2014, CIC issued Operational Bulletin 566 [“Federal Immigrant Investor Program and Entrepreneur Program Applications: Budget 2014”], which indicated that processing of IIP applications “should proceed according to routine office procedures” until

section 87.5 of the IRPA comes into force. V. Facts pertaining to each of the five lead files A. Hong Kong [ 44 ] Turning, now, to the facts pertaining to each of the five lead cases, as noted, Mr. Jia filed his application in December 2009 at the Hong Kong visa post. His application, like that of all the other 94 applicants in these matters, was made on a

summary basis and did not require provision of detailed information. (Applications filed after December 2010 required much more information.) [ 45 ] Following receipt of his application, CIC sent Mr. Jia an acknowledgment of receipt letter and placed his application into the queue for processing. The standard form letter stated that the Hong Kong visa post was “currently processing applications received 18-24 months ago; however circumstances may change. Please consult the website of Citizenship and Immigration Canada (CIC) for up-to- date information on processing times at our office”.

The letter then gave the URL for the page on CIC’s website where updated processing times were available. [ 46 ] CIC periodically updated these times on its website, showing increasingly longer average processing times for IIP applications in Hong Kong. More specifically, a 37-month wait was posted as the processing time in October 2010. By April of 2012, this had lengthened to 44 months and by October of that year to 47 months. In 2013, the processing time for IIP applications in Hong Kong increased to 51 months in April and then to 56 months in October.

By March 2014, the processing time for IIP applications posted for Hong Kong stood at 57 months. These processing times are summarized in the table below: Hong Kong visa post Date Processing time (months) October 22, 2010 37 April 23, 2012 44 October 24, 2012 47 April 24, 2013 51 October 30, 2013 56 March 10, 2014 57 [ 47 ] With the exception of 2007, the Hong Kong visa post met or exceeded its quota of IIP applications that it was targeted to process each year. Increasing wait times were thus generated by the proportion by which the volume of applications exceeded the quota or target

allocated to the office. The inventory of unprocessed IIP applications in Hong Kong stood as follows from 2006 to 2013: Hong Kong visa post Year Inventory 2006 1 645 2007 2 181 2008 2 368 2009 8 322 2010 15 875 2011 17 283 2012 16 340 2013 15 388 [ 48 ] As of June 2013, there were 5500 cases ahead of Mr. Jia’s in the queue for processing at the Hong Kong visa post. Thousands of cases were still ahead of his file in the processing queue on the date

section 87.5 of the IRPA came into force. [ 49 ] Counsel for Mr. Jia argues that if the Minister had done two things differently, Mr. Jia’s IIP application would have been processed by now. More specifically, he alleges that if the Minister had not instituted concurrent processing for the “old” and “new” IIP applications, or if the Minister had set a higher quota, proportionally equivalent to that set under the QIP, Mr. Jia would now be in Canada.

By proportionally equivalent, he means if the Minister had set quotas for the IIP based on QIP quotas, increased by the proportion by which the population of Canada, outside Quebec, exceeds the population of Quebec. In other words, the applicant argues that he (and the other applicants) should have had their IIP applications processed on a “first-in, first-out” basis and that the number of IIP applications Canada accepted each year should have been substantially increased. [ 50 ] I am far from convinced that counsel for the applicants has demonstrated that if either or both of these two things had occurred, Mr.

Jia’s application (or the applications of any of the other applicants) would have been processed by now. Be that as it may, I am prepared to accept that counsel’s re-working of the IIP and QIP numbers does make such a demonstration for purposes of disposing of these applications, as I prefer to dispose of them on a principled as opposed to an evidentiary basis. B. New Delhi [ 51 ] The facts in the other four lead cases are not materially different from those in Mr. Jia’s case. Mr. Bansal made his application to the Canadian High Commission in New Delhi, India in November 2008.

The standard form acknowledgement of receipt letter he was sent stated as follows: You will hear from us regarding the results of the evaluation of your application in twelve months. Please do not contact us before twelve months have passed since you received this letter. Due to the high volume of inquiries received in this office, we will not be able to respond to inquiries sent within twelve months. [ 52 ] The Computer Assisted Immigration Processing System (or CAIPS) notes, which have been filed as part of the certified tribunal record in these matters, indicate that Mr.

Bansal or his son followed up on the application with the High Commission in New Delhi and were directed to CIC’s website for updated processing times. Those times, like the ones posted for Hong Kong, were substantial and increased over time.

More specifically, the website provided the following estimates for the average processing time for IIP applications in New Delhi: New Delhi visa post Date Processing time (months) October 22, 2010 28 April 27, 2011 34 October 27, 2011 38 April 23, 2012 40 October 24, 2012 47 April 24, 2013 49 October 30, 2013 55 March 10, 2014 60 [ 53 ] The queue of IIP applications in New Delhi was shorter than that in Hong Kong. The following numbers of applications were in queue at the end of each of the years between 2006 and 2013: New Dehli visa post Year Inventory 2006 11 2007 32

2008 369 2009 877 2010 1 065 2011 1 016 2012 949 2013 845 [ 54 ] Mr. Bansal’s application moved up in the queue, and in mid-2013 he was asked to provide additional documentation in support of his application. The First Secretary of Immigration at the Canadian High Commission in New Delhi deposed in her affidavit, sworn on May 30, 2013, that she anticipated that a final decision in Mr. Bansal’s application might be made sometime in mid-2014. No such decision had yet been made as of the date these applications were argued. C. London [ 55 ] At the time of his application, Mr. Gholampour resided in Pakistan.

His IIP application was sent to the Canadian High Commission office in London, U.K. in early 2010 for processing. The standard form acknowledgment of receipt letter for London stated as follows: At the present time our estimated processing period is 12 - 18 months. Please note this is based on our current inventory of applications and processing times may vary as a result of changes to the inventory. [ 56 ] As with the other visa posts, London posted its average anticipated wait times for processing of visa applications on CIC’s website.

They were as follows for IIP applications: London visa post Date Processing time (months) October 22, 2010 25 April 27, 2011 26 October 27, 2011 32 April 23, 2012 46 October 24, 2012 55 April 24, 2013 55 October 30, 2013 57 March 10, 2014 65 [ 57 ] Here, as well, the queue was shorter than in Hong Kong.

At the end of each year from 2006 to 2013, the following numbers of IIP applications were waiting to be processed in London (or Islamabad): London and Islamabad visa posts Year Inventory (London) Inventory (Islamabad) 2006 137 99 2007 293 121 2008 555 211 2009 735 250 2010 972 224 2011 1 082 12 2012 939 9 2013 779 10 [ 58 ] CIC processed the following number of “old” and “new” applications from Islamabad in London between 2010 to 2013: Islamabad cases finalized in London Year Total cases (“old” and “new” combined) 2010 N/A 2011 5 2012 29 2013 64 [ 59 ] It appears that, when all years are viewed together, CIC exceeded its target for both Islamabad and for London over the period

[ 59 ] It appears that, when all years are viewed together, CIC exceeded its target for both Islamabad and for London over the period from 2006 to 2012, but in a few years fell slightly below target in the numbers of applications it processed. [ 60 ] CIC has requested that Mr. Gholampour furnish additional documents to support his application, but as of the date of hearing, no decision had yet been made in respect of it.

The First Secretary, Immigration Section, at the Canadian High Commission in London deposed in her affidavit, sworn June 7, 2013, that it would take at least 18 months from that date to finalize Mr. Gholampour’s case. D. Ankara [ 61 ] Mr. Nasseri Karimi Vand made his application to the Canadian Embassy in Ankara, Turkey in October 2007. He did not receive a letter setting out an estimated processing time but, rather, merely a form acknowledging receipt of his application. However, as in other cases, estimated processing times for IIP applications were available on CIC’s website.

It provided as follows with respect to estimated average processing times for IIP applications considered at the Ankara visa post: Ankara visa post Date Processing time (months) October 22, 2010 34 April 27, 2011 33 October 27, 2011 32 April 23, 2012 33 October 24, 2012 54 April 24, 2013 63 October 30, 2013 74 March 10, 2014 78 [ 62 ] With the exception of 2009, CIC met its targets for the processing of IIP applications in Ankara from 2006 to 2011.

In 2012, however, the visa post was flooded with applications from Syria, as the Canadian government closed its embassy in Damascus, and thousands of files were transferred from Damascus to Ankara. The Ankara visa post also had to deal with a large influx of claims from Tehran.

This slowed processing, although according to the affidavit of the First Secretary of the Canadian Embassy in Ankara, sworn July 19, 2013, the office still managed to meet 95% of its overall target for all business applications in 2012. [ 63 ] The following numbers of pending applications were in the queue of IIP applicants waiting for processing in Ankara at the end of each year from 2006 to 2013: Ankara visa post Year Inventory 2006 9 2007 12 2008 32 2009 81 2010 102 2011 72 2012 1 634 2013 1 553 E. Pretoria [ 64 ] Mr.

Stopforth submitted his IIP application at the Canadian High Commission in Pretoria, South Africa, in 2010. The standard form acknowledgment of receipt letter sent to him on August 5, 2010 stated as follows: “Business applicants – we are currently assessing cases received in April 2005”. The estimated processing times for Pretoria from 2006 to 2012 were not posted on CIC’s website as that office did not finalize at least ten cases in any of those years. [ 65 ] The evidence reveals that no target was allocated to the Pretoria visa post for any of 2007 through to 2012.

However, the total number of applications pending in inventory there was limited; at the end of each of 2006 to 2013, the total number of IIP applications pending in Pretoria were as follows: Pretoria visa post Year Inventory 2006 6 2007 8 2008 23 2009 32

201036 201138 201236 201332 [66] In addition, despite having no quota, the Pretoria visa post processed a small number of applications in each of 2006 to 2010, in2012 and during 2013. The counsellor (Immigration) at the Canadian High Commission in Pretoria deposed in his affidavit, swornSeptember 23, 2013, that Mr. Stopforth’s application was one of the next in queue and that he anticipated it would be processedsometime in 2014. As of the hearing date, it was not yet processed. VI.

Are the applicants entitled to an order in the nature of mandamus? [67] I turn now to consideration of the applicants’ request for relief in the nature of mandamus, a remedy which may be awardedagainst an administrative actor to require it to carry out a public legal duty when it has failed to do so. The test applicable to determinewhen an award of mandamus is appropriate is well-settled and involves the following factors, as enunciated by the Federal Court ofAppeal in Apotex Inc. v.

Canada (Attorney General), (FCA), [1994] 1 F.C. 742 (Apotex): 1. there must be a public legal duty to act; 2. the duty must be owed to the applicant; 3. there must be a clear right to performance of that duty; 4. no other adequate remedy is available to the applicant; 5. the order sought will be of some practical value or effect; 6. the court in the exercise of its discretion finds no equitable bar to the relief sought; and 7. the balance of convenience favours granting mandamus. [68] Where the duty sought to be enforced is discretionary, additional considerations apply, namely that: 1. in exercising a discretion, the decision maker must not act in a manner which can be characterized as unfair or oppressive or whichdemonstrates flagrant impropriety or bad faith; 2. mandamus is unavailable if the decision maker’s discretion is characterized as being unqualified, absolute, permissive or unfettered; 3. in the exercise of a fettered discretion, the decision maker must act upon relevant as opposed to irrelevant considerations; 4. mandamus is unavailable to compel the exercise of fettered discretion in a particular way; and 5. mandamus is only available when the decision maker’s discretion is spent such that the applicant has a vested right to theperformance of the duty. [69] This test has been applied in immigration matters like the present (see e.g.

Conille v. Canada (Minister of Citizenship andImmigration), (FC), [1999] 2 F.C. 33 (T.D.) (Conille); Dragan v. Canada (Minister of Citizenship and Immigration),2003 FCT 211, [2003] 4 F.C. 189 (Dragan); Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, 52 Admin. L.R.(4th) 118 (Vaziri); Liang v. Canada (Citizenship and Immigration), 2012 FC 758, [2014] 1 F.C.R. 352 (Liang); Agama v. Canada(Citizenship and Immigration), 2013 FC 135, 427 F.T.R. 127 (Agama); He v. Canada (Citizenship and Immigration), 2014 FC 92, 22Imm. L.R. (4th) 324 (He); Zhang v.

Canada (Minister of Citizenship and Immigration), 2014 FC 93, 65 Admin. L.R. (5th) 214 (Zhang);Fang v. Canada (Citizenship and Immigration), 2014 FC 94, 65 Admin. L.R. (5th) 259 (Fang); Jiang v. Canada (Citizenship andImmigration), 2014 FC 95 (Jiang); Kearney v. Canada (Citizenship and Immigration), 2014 FC 96, 65 Admin. L.R. (5th) 244 (Kearney);Wurm v. Canada (Citizenship and Immigration), 2014 FC 97, 65 Admin. L.R. (5th) 290 (Wurm); Mazarei v. Canada (Citizenship andImmigration), 2014 FC 322, 24 Imm. L.R. (4th) 325 (Mazarei); Mobasher v.

Canada (Citizenship and Immigration), 2014 FC 399(Mobasher)). [70] In applying the test to the present case, the Minister concedes that he owed a duty to IIP applicants, for so long as the programcontinued to exist, to process their IIP applications in accordance with the requirements of the IRPA, the Regulations and MinisterialInstructions.

The content of that duty, however, is in dispute. [71] On one hand, the applicants suggest that the Minister owed them a duty to process their applications under the processing criteriain force when the applications were made, and, moreover, owed them a duty to set quota targets for the IIP in respect of regions ofCanada outside Quebec in an equivalent proportion (based on population) to those established for Quebec under the QIP.

The Minister,on the other hand, disputes that any such duties existed, arguing in this regard that the IRPA afforded him broad, if not unfettered,discretion to set the quota or target for the number of IIP applications to be accepted each year and that the Ministerial Instructionsspecifically contemplate the change in processing priorities to provide for the concurrent processing that the applicants impugn. TheMinister thus asserts that his only duty in respect of these applications was to process the IIP applications within a reasonable period oftime.

The respondent argues that this has been done and that the delays experienced by the applicants are not unreasonable when oneconsiders all the facts and the relevant provisions in the IRPA, the Regulations and Instructions. [72] In my view, the respondent is correct on all points.

[73] In this regard, the IRPA and the Regulations did not cast any obligation on the Minister to set any particular quota or target forthe number of IIP applications that may be accepted in a year or to adhere to any particular processing priority. Likewise, there was norequirement to tie the IIP quota to the numbers that might be set under the QIP, an entirely separate immigration program. Nor can anysuch duties be inferred from the general purpose clauses set out in

section 3 of the IRPA, as the applicants would argue. It would takemuch clearer language than that set out in

section 3 to limit the discretion Parliament afforded the Minister under the IRPA to set thenumber and type of immigrants Canada will accept. In short, in matters of immigration, the IRPA affords the Minister the right—andduty—to assess Canada’s immigration needs and to set the number of immigrants to be accepted as members of the various economicclasses each year.

This is made clear by the entire scheme of the Act and, in particular, by sections 11, 12, 87.3 and subsection 94(2). [74] In this regard, it is noteworthy that sections 11 and 12 of the IRPA, the provisions establishing the possibility of immigration as amember of an economic class, are cast in permissive terms such that there is no absolute right to the issuance of a visa following the merefact of having made an application. That there is no need for the Minister to afford all qualified applicants a visa is confirmed insubsection 94(2), under which the Minister must report the number of immigrants received, and

section 87.3, which affords the Ministerthe ability to promulgate the sorts of Instructions that have been issued in this case. [75] Thus, would-be immigrants have no right to force the Minister to set any particular quota for any economic class. [76] This determination is in keeping with long-established principles, which hold that no one possesses a right to immigrate. TheSupreme Court of Canada has indeed held that “the most fundamental principle of immigration law is that non-citizens do not have anunqualified right to enter or remain in Canada” (Medovarski v.

Canada (Minister of Citizenship and Immigration); Esteban v. Canada(Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539 (Medovarski), at paragraph 46; Chiarelli v. Canada(Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711 (Chiarelli), at page 733). [77] The right of the Minister to set quotas per immigrant class and to change processing priorities for pending immigrationapplications has been recognized by this Court. In Vaziri, which was decided before

section 87.3 was added to the IRPA, Justice Sniderconfirmed, at paragraph 36, that even without such a provision in the legislation the Minister had the right to set the number and type ofimmigrants to be accepted and could provide for concurrent processing of applications filed under differing criteria, in a similar fashionto what occurred in these cases.

An identical conclusion regarding the ability of the Minister to set quotas, change processing prioritiesand to move away from a “first-in, first-out” system was likewise confirmed in Liang, at paragraph 53. [78] Thus, the extent of the duty owed by the Minister in this case was to process the applicants’ IIP applications within a reasonableperiod of time. [79] In evaluating whether the Minister has done so, my colleague, Justice Tremblay-Lamer, set out the applicable test in Conille, atparagraph 23, holding that for a delay to be considered unreasonable, it must meet three requirements: 1. the delay must have been longer than the nature of the process prima facie requires; 2. the applicant must not be responsible for the delay; and 3. the authority responsible for the delay has not provided satisfactory justification. [80] This test has been applied in the subsequent jurisprudence (see e.g.

Vaziri, at paragraph 51; Dragan, at paragraph 54; Mobasher,at paragraph 18; Liang, at paragraph 26). [81] The applicants argue that the delay in their cases is unreasonable as it is as long or longer than those found unreasonable in othercases, including, notably, Dragan and Liang, which they assert are on all fours with this case.

I disagree and believe both these casesinvolved situations that are markedly different from the present for several reasons. [82] In the first place, the applicable legislation considered in both cases was fundamentally different. [83] In Dragan, Parliament had delayed the coming into force of new requirements for immigrants applying as members of thefederal skilled worker (FSW) class so as to allow those with pending applications time to have them considered under the old criteria.The Parliamentary Committee which studied the issue made recommendations to extend the effective date for the new requirements soas to allow pending applications to be processed under the old criteria.

These recommendations were enacted into law. At the same timeas the Committee studied the issue of the effective date for the new criteria, it also made several suggestions for measures to be adoptedby the Department to ensure that the pending applications were processed in a timely fashion. The Minister failed to adopt any of thesesuggestions, which resulted in a large number of pending applications not having been processed by the cut-off date. It was in light ofthese facts that Justice Kelen determined it appropriate to grant relief in the nature of mandamus in Dragan.

No such recommendationswere made and ignored in this case. [84] In Liang, the legislation was also different from how it stood at the material times in this case. When my colleague, JusticeRennie, decided Liang,

section 120 of the BIA expressly prevented the retrospective application of Ministerial Instructions issued undersection 87.3 of the IRPA to a portion of the FSW applications before him, namely, those filed prior to June 27, 2008. As noted, section120 of the BIA was repealed, effective a few weeks after the date of the decision in Liang.

Thus, since June 29, 2012, subsection87.3(3.1) of the IRPA has specifically contemplated that Ministerial Instructions may have a retrospective effect on pending applications.Such effect is moreover foreseen by MI2, which provided for concurrent processing of old and new IIP applications.

These factstherefore distinguish the applicants’ situation here from that in Liang (as Justice Boivin noted in He, at paragraph 28; Zhang, atparagraph 28; Fang, at paragraph 28; Jiang, at paragraph 28; Kearney, at paragraph 27; and Wurm, at paragraph 26). [85] In the second place, in Liang the Minister made statements in his report to Parliament regarding processing times for FSWapplications that were not made in these cases.

In Liang, the Minister indicated that, as of 2010, processing times for FSW applicationswould range from 6 to 12 months as caps were being set on the numbers of applications that CIC would accept. As it turned out, thesepredictions were inaccurate and much longer processing times were experienced. Justice Rennie found the Minister’s predictions in his

report to Parliament (and in a media release) on processing times to be conclusive for the group of the applications to which the estimates applied, stating as follows, at paragraphs 40 and 41 of Liang : Canadian jurisprudence has long recognized that Ministers have an obligation to perform their legal duties in a reasonably timely manner. This legal duty has long coexisted with the understanding that Ministers are accountable for the management and direction of their ministries and have the authority to make policy choices and to set priorities.

These two seemingly conflicting propositions have been reconciled by according the Minister considerable leeway in determining how long any kind of application will take to process, based on his policy choices. Thus, if the Minister has determined that Canada’s immigration goals are best attained by processing spousal sponsorships in 4 years on average, it is not for the Court to say that it believes the Minister could, or should, process those applications in 2 years. It is for the Minister, and not the Court, to run the department.

It is for this reason that projected processing times emanating from the Minister and the department are accorded so much weight. The Minister is not only best placed to know how long an application will likely take to process, but he has also been granted the authority by Parliament to set those processing times in a way that balances the various objectives of the IRPA . However, once an application has been delayed past those processing times, without a satisfactory justification, the Court is authorized to intervene and compel the Minister to perform his duty.

This approach is consistent with the principle that the Minister is accountable to Parliament for his policy choices, and those choices are not to be gainsaid by the courts [citation omitted]. Thus, deference is accorded to the Minister in setting policies, but the limit of that deference is his legal duty under the IRPA. [ 86 ] In addition, in Liang , the respondent appears to have virtually conceded that the delays experienced by the FSW applicants with older pending applications were unreasonable.

In this regard, Justice Rennie noted, at paragraph 28 of his decision that: The pre-C-50 applications were all submitted before February 27, 2008. The most recent applications in that group have been outstanding for at least 4.5 years, and some of them have been awaiting processing for as long as 9 years. The Minister did not argue very forcefully before the Court that this delay does not amount prima facie to a longer delay than the nature of the process requires. [ 87 ] No similar concession was made in this case. [ 88 ] Thus, Liang and Dragan both involved situations very different from the present.

On the other hand, the present 95 cases are very similar to the situations in He , Zhang , Fang , Jiang , Kearney , Wurm , and Mobasher , and are also comparable to the situation in Mazarei , all of which were cases where mandamus applications were refused. [ 89 ] As was either expressly noted or implicit in He , Zhang , Fang , Jiang , Kearney , Wurm , Mobasher , and Mazarei , when evaluating whether a delay in processing a visa application has been unreasonable, the Court must have regard to all pertinent circumstances.

These include the volume of applications received and the priorities and targets set by the Minister under the IRPA . As Justice Snider noted, at paragraph 55 of Vaziri , prior cases cannot be applied mechanically to settle the acceptable length for visa processing by CIC.

Rather, the reasonableness of the delay “must be informed by a full understanding of where the [a]pplicants’ applications fit within the immigration scheme”, which may legitimately provide for the slower processing of certain types of applications. [ 90 ] When viewed in this light, the delays faced by the applicants in these matters are not unreasonable. Simply put, there is no evidence that any of their applications has been taken out of its proper place in the queue or otherwise ignored by the respondent.

Rather, as in He , Zhang , Fang , Jiang , Kearney , Wurm , and Mobasher , the delay in processing has simply been a function of the huge numbers of applications received and the quotas and processing priorities that the Minister legitimately set under the authority afforded him under the Act and Regulations. The fact that CIC fell slightly short of meeting its targets in a couple of years at a couple of visa posts does not change this conclusion as so doing has not materially contributed to the length of the queues.

In addition, the situation in Ankara, caused by the unrest in the Middle East, provides a full explanation for that post’s not meeting its targets for 2012. [ 91 ] The applicants argue that there has been unreasonable delay in the processing of their files because they claim that CIC made representations to them that their applications would be processed much more quickly than they have been, which the Court should find binding.

While no evidence from any of the applicants in the five lead cases has been filed to substantiate this claim, I am prepared to accept that many of the applicants initially believed and trusted that their applications would have been considered much more quickly. I am also prepared to accept that many applicants may well have made choices based on these beliefs, such as maintaining the required investment funds in liquid investments (which may have led them to sell valuable assets) and choosing to send their children to Canadian schools or universities.

Indeed, counsel for the applicants referred to the affidavit of Jun Du, one of the applicants in one of the subsequently filed mandamus applications to which these reasons will apply. That affidavit indicates that this applicant had made precisely these sorts of choices. I therefore recognise that many of the applicants are disappointed by the length of time it has taken to process their applications and may well have experienced hardship due to the time their applications have been pending.

However, these very real concerns do not translate into an entitlement to an order in the nature of mandamus . [ 92 ] In addition to having no entitlement to have their applications processed in the way they wish by reason of the relevant statutory criteria, discussed above, the statements made to them in form letters, manuals or websites simply do not give rise to any representation that would bind the respondent in respect of how long IIP applications would be in process or as to the priority within which they would be considered, for several reasons. [ 93 ] In the first place, a visa applicant could have had no basis to assume that quotas or processing priorities would remain unchanged.

As the Supreme Court of Canada held, at paragraph 47 of Medovarski , another immigration case, “[t]here can be no expectation that the law will not change from time to time”. Indeed, it is well settled that legislation may have a retrospective effect if it so provides and may remove or change settled expectations (see, e.g., British Columbia v. Imperial Tobacco Canada Ltd. , 2005 SCC 49 , [2005] 2 S.C.R. 473, at paragraphs 69–72 ). [ 94 ] Secondly, there is no basis to conclude that any representations that should be viewed as binding were made to the applicants.

The applicants argue that the June 8, 2006 Operational Instruction and the form letters should be viewed as creating such representations and should be given the same binding effect as the Minister’s statements were given in Liang .

[95] I disagree because there are several important differences between the statements that Justice Rennie found to be binding in Liangand the documents the applicants rely on here. [96] Most importantly, the statements in Liang were made by the Minister, himself, in a report he laid before Parliament in dischargeof his duties under the IRPA.

Such a commitment cannot be likened to general statements made in departmental form letters or generalcomments on processing made in an Operational Instruction that was overtaken by legislative amendments and further Bulletins. [97] Moreover, the statements made in the form letters and the 2006 Operational Instruction are much more equivocal than thestatements considered in Liang. Here, in most instances, the acknowledgement of receipt letters indicated that the processing estimateswere subject to change.

In addition, applicants were directed to the CIC website, a review of which would have indicated that processingtimes were steadily increasing, which the applicants should have taken to mean that their applications would be processed much moreslowly as time progressed. As for the 2006 Operational Instruction, it does not promise any processing time whatsoever, but, rather,merely indicates that as of 2006, it would typically take four to six months to finalize an application after CIC requested the applicant toprovide additional documents.

These statements cannot be taken as creating any promises as to how long processing at this stage mighttake in 2013 after such a request is made, given the number of changes that took place in the intervening years, including the flood ofapplications and the numerous amendments to legislation, Instructions and Bulletins, promulgated sin

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