Tabingo v. Canada: Citizenship and Immigration Court Case in Canada awaiting Crucial Decision

A case that is eagerly awaited is on the decision by Citizenship and Immigration Canada (CIC) to return all applicants under Federal Skilled Worker Program (FSWP) that were submitted before 27 February, 2008. This is an attempt to initiate a process for elimination of backlog in the number of applications. This would mean that approximately 300,000 applications will be returned, along with amount in processing fees that counts to nearly $130 million.

The lead case, Tabingo v. Canada (Citizenship and Immigration), was dismissed by the Federal Court last year. Under the provisions of the newly amended section 87.4(1) of Immigration and Refugee Protection Act, applications made for permanent residence under FSWP made before February 27, 2008, stands terminated unless the selection decision had already been made prior to March 29, 2012. However, a hearing at the Federal Court of Appeal has been scheduled for the week of June 23, 2014.

An application by Tabingo and seven others, on behalf of 1,400 others, have already been made for a judicial review for grant of prerogative relief. The Appeal Books giving the evidence that the applicants are relying on have been already been filed before 20, December 2013 and the legal arguments that were to be filed before 28 February 2014 have been done and the legal counter arguments by CIC are due on 17 April, 2014.

It has been appealed that the amendment to section 87(4) violates the rule of law. It goes against the provisions that are contained in sections 6, 7 and 15 of the Canadian Charter of Rights and Freedoms. The arguments also rely upon the procedural safeguards that have been outlined in sections 1(a) and 2(e) of the Canadian Bill of Rights.

The counter arguments that stand against the appeal by the applicants are that:

(a) The applicants are non-citizens and without sufficient claim to the country of Canada to avail themselves of the protective elements of sections of 6, 7 and 15 of the Canadian Charter of Rights and Freedom.

(b) The claim to immigrate and particularly as a member of a designated economic class is certainly not the fundamental right and a choice that emphasizing personal autonomy as intended in section 7.

(c) It is also not established that provision of section 87(4) legitimizes and codifies discrimination past or present based on origin of the applicant and current country of residence.

(d) In addition, there is no adjudicative process involved in considering the termination of the applications on which the selection decision has not been made prior to the given date of March 29, 2012.

The case is expected to be strongly argued on the basis that the provisions of section 87(4) are unambiguous and has valid legislation constitutionally. The termination of the applications is only with the provisions as contained in law and any exemption or waiver on any grounds whatsoever would require further amendment to the existing provisions.

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