Jason Kenny Plays Another Cruel Joke On Foreign Skilled Workers

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By R. C. Puri

Mr. Jason Kenny, the Hon’ble Federal Minister of Immigration, Citizenship and Multiculturalism, appears to be in the chronic habit of not only inviting unwarranted troubles for himself, but embarrassing the national government also for one or the other reason. Very recently, he has received a very severe setback at the Federal Court of Canada in the matters of Dong Liang Versus Minister of Citizenship and Immigration (Docket # IMM 9634 of 2011) and Phool Maya Gurung Versus Minister of Citizenship and Immigration (Docket # IMM 137 of 2012) – both the cases are reported in 2012 F.C. 758. It has been categorically ruled by the Hon’ble Mr. Justice Donald Rennie, after the threadbare discussion of the facts and law relevant thereto, as contained in the Immigration and Refugee Protection Act and Section 120 of the Budget Implementation Act, 2008, that the Ministerial Instructions issued subsequently shall have no adverse impact upon the pre-C50 applications. Pre-C50 applications are those applications that were submitted to the Visa offices abroad, prior to February 27, 2008, which were sought to be eliminated by the minister vide his instructions contained in MI1. After discussing the various provisions of law on the subject the Hon’ble Judge came to a very sound and logic conclusion in paras 6 & 33 of the judgement that the amendment incorporated in Section 87.3 of the Immigration and Refugee Protection Act and the ministerial instructions are expressly inapplicable to pre-C50 applications, as they were prospective only and would apply only in regard to the applications made on or after February 27, 2008. Again, in para 34 of the judgement the Hon’ble Judge holds that Section 120 of the Budget Implementation Act of 2008 too fortifies the above said position by quoting the provision of Section 87.3 and categorically holds that the applications pertaining to the period before February 27, 2008 shall remain unaffected from the subsequent ministerial instructions.

Operational Bulletin 442 of June 29, 2012:

Nevertheless, for the gratification of his retaliatory mindset the Hon’ble Minster has invoked another piece of hurdle in the way of the majority of the pre-C50 applicants with the enforcement of the Operational Bulletin 442 of June 29, 2012 (formerly Bill C-38), where under the processing of certain applications made under Federal Skilled Worker (FSW) program prior to February 27, 2008, is to cease effective June 29, 2012 and to return the fee paid with regard thereto to the individuals concerned. Consequently harbouring upon the Jobs growth and Long-term Prosperity Act the Hon’ble minister aims to proceed ahead with the elimination of the majority of the backlog (amounting to 95% tentatively) in the FSW program by terminating the applications pending prior to February 27, 2008, and returning the fee received from the individuals concerned. The criteria is that where 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.

Processing Instructions:

Visa offices are to cease processing of FSW applications made prior to February 27, 2008, in accordance with the following instructions:

If the officer…andThen…
has not established whether the applicant meets the selection criteria prior to March 29, 2012
  • the application is terminated; and
  • fees paid to CIC are to be returned to the person who paid them.
has established whether the applicant meets the selection criteria prior to March 29, 2012the application hasnot been finalized before June 29, 2012…
  • processing of the application continues to a final decision; and
  • fees paid to CIC will not be returned to the person who paid them.
established whether the applicant meets the selection criteria on or after March 29, 2012the application hasnot been finalized before June 29, 2012…
  • the application is terminated; and
  • fees paid to CIC are to be returned to the person who paid them.
established whether the applicant meets the selection criteria on or after March 29, 2012the application has been finalized before June 29, 2012…
  • the final decision on the application stands;
  • processing continues to visa issuance or refusal; and
  • fees paid to CIC will not be returned to the person who paid them.

Note: No further action is required at this time on the part of visa offices for those applications that are terminated in accordance with the above instructions.

Establishing that a decision has been made as to whether the applicant meets selection criteria:

A decision as to whether the applicant meets selection criteria was made if, prior to March 29, 2012, at least one of the following actions was taken:

  • a selection decision was entered into the processing system (“SELDEC” in the Computer-Assisted Immigration Processing System (CAIPS) or “Eligibility – Passed” / “Eligibility – Failed” in the Global Case Management System (GCMS));
  • the file notes clearly state that the selection criteria have or have not been met, but a selection decision has not yet been entered into the processing system;
  • a negative decision had previously been made, but the file had been re-opened for a redetermination further to an order by a Superior Court (which includes the Federal Court) or a settlement agreement entered into by way of a Court order made prior to March 29, 2012.

A decision as to whether the applicant met selection criteria was not made prior to March 29, 2012, if any of the following situations applied as of that date:

  • a preliminary review of the documentation has taken place, but a selection decision has not been entered into the processing system or documented as described above;
  • additional documentation had been requested from the applicant but has not been received, or a selection interview is pending;
  • additional documents were received that could have served to make a selection decision, but the selection decision has not been entered in the processing system or documented as described above. For instance, receipt of an Arranged Employment Opinion (AEO) or a response to an officer’s request for additional information prior to March 29, 2012.

Establishing that a final decision has been made:

In establishing that final decision has been made on an application, at least one of the following actions must have been taken:

  • a final decision was entered into the processing system (“FINDEC” in the Computer-Assisted Immigration Processing System (CAIPS) or “Final – Approved” / “Final – Refused” in the Global Case Management System (GCMS));
  • the file notes clearly state that a final decision has been rendered, but the decision has not yet been entered into the processing system.

Returning fees paid to CIC:

  • The. process of returning fees paid to CIC in concert with the termination of affected applications will be centralized at NHQ – Finance in consultation with visa offices as required.
  • Fee returns and communications with affected applicants will be initiated by CIC in due course.
  • The basis for the amounts to be refunded will be the POS+ data at missions. NHQ – Finance will communicate with affected missions in due course to provide further instructions on the extraction of required data. The POS+ data will subsequently be matched with the eligible cases extracted from CAIPS/GCMS and will form the baseline data for the purpose of returning fees to the payee.
  • NHQ – Finance will communicate with eligible applicants in due course to confirm contact and payee information prior to initiating any return of fees paid to CIC, and will allow a reasonable period of time for applicants to respond. In cases where no response to any initial and any follow-up communications is received, applications are still terminated, but action may still be taken at a future date to return fees to the person who paid them.
  • Fee returns will be issued in the appropriate currency for the country in which the person who paid them resides, using the daily exchange conversion rate in effect on the date of issuance.
  • Unsuccessful applicants who had paid the Right of Permanent Residence Fee (RPRF) will continue to be entitled to a return of that fee in accordance with existing procedures.

The passing of the bill C-38 as the Operational Bulletin 442 of June 29, 2012 by the party at the treasury benches is nothing short of the flagrant abuse of its political power and its passing in extravagant haste by the Hon’ble minister just to ward off a massive chunk of the visa seekers under the Federal Skilled Workers program is not only violate of the statutory enactments, but is contrary to the well established cannons of equitable justice. This unsolicited and injudicious step of the Conservatives is sure to open the Pandora’s Box of the uncalled for problems for the coast-to-coast government and lead to mercilessly squandering away of millions of dollars from the national exchequer, as the persons aggrieved will never feel satisfied with the return of the mere amount, actually paid to the Immigration Canada on account of the fee for their respective applications. They shall further ask for the statutory interest, damages and costs etc; which no court will ever deny to them. It appears that the Hon’ble minister is oblivious of the fact that the individuals feeling aggrieved from his whimsical mindset will never sit as the mute spectators only on this grave injustice meted out to them and shall retaliate with all their might to secure even handed legal justice by every possible means and will not rest until the fair-minded justice is restored to them.