The End of the Federal Skilled Worker Program – Investor Program Doomed

By Author: Admin | September 15, 2014

With not much fanfare, the Federal Court of Appeal dismissed the case of Shahid (aka Tabingo) v. Minister of Citizenship & Immigration.   This case stated that the Minister of Immigration was permitted to terminate the thousands of skilled worker applications that had been languishing for years with the immigration department.  It also stated that when terminating a skilled worker application,  there isn’t any significant ambiguity or discretion used by an officer in light of s.87.4(1) of the Immigration Refugee Protection Act:

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

The Court of Appeal stated that is ok to terminate the applications since Canadian immigration law allows the Immigration Minister to prioritize immigration’s economic benefits to Canada (and consequently terminate the old applications which were lodged based on Canada’s older economic goals).

The Federal Court of Appeal also said that is ok if the law at 87.4(1)  to terminate the skilled worker applications is retrospective (i.e. enacted with  the effect of terminating FSW applications filed before 87.4(1) came into effect), given that 87.4(1)  clearly was designed to be retroactive.

The decision acknowledged that there was a slowness of processing applications from skilled worker applicants hailing from Asia and Africa in comparison to applicants from Europe and America.  However, the Court of appeal accepted that the Immigration Minister has discretion to allocate resources pretty much however the Minister deems suitable to achieve Canada’s immigration goals.

The decision acknowledged the financial loss of the FSW applicants who paid filing fees and perhaps fees for medical examinations and courier fees when lodging their skilled worker applications.  Nevertheless, such losses don’t trigger a ‘right to life, liberty and security of the person’.

This doesn’t bode well for investor applicants whose cases were also terminated by legislation similarly drafted (probably more clearly drafted then the 87.4(1) of IRPA.   The investors lost at the Federal Court, but have a case pending at the Federal Court of Appeal.

Not much media coverage of this decision took place despite the fact that about 280,000 applications were confirmed to have been properly terminated under Canada’s immigration laws by this recent decision at the Federal Court of Appeal..

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