Digests

Akram v. Canada (Minister of Citizenship and Immigration)

IMM-4286-03

2004 FC 826, Mosley J.

8/6/04

13 pp.

Judicial review of refusal of permanent residence-- Application for permanent residence as independent skilled worker assessed and denied under Immigration and Refugee Protection Act (IRPA) and Immigration and Refugee Protection Regulations (June 2002) (IRPR) five months after came into effect--Application forms signed in January 2002, received in London, England in February 2002--Whether respondent breached duty of fairness in failing to provide applicant with notice of changes in legislation before denying application notwithstanding public notice of anticipated changes in Canada Gazette--Applicant relying on decision of Choi v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 763 (C.A.) and arguing respondent had duty to inform him of new assessment criteria prior to refusing him--Respondent submits decision in Kazi v. Canada (Minister of Citizenship and Immigration), [2004] 1 F.C.R. (F.C.) 161 distinguishable because applicant in Kazi not given reasonable period of time to further complete or perfect application after coming into force of IRPA and IRPR but here, applicant had more than five months--IRPA, s. 2(2) providing references to Act including regulations made under it--S. 190 mandating applications under former Act pending when IRPA coming into force to be governed by IRPA-- Pursuant to IRPR, s. 361, January 1, 2002 critical date for applications being considered under IRPA or former Act-- Respondent not having duty to directly inform applicant of changes that took place with passing of IRPA and IRPR and how transitional provisions affected assessment of application --First, ignorance of law neither defence, nor sword to claim procedural right to be informed of changes in law--Second, applicant had assistance of immigration consultant who was clearly aware of proposed changes--Third, no mention in affidavit of any other attempt on his part to keep informed about immigration process-- Fourth, onus on applicants to demonstrate meet selection requirements--Both Choi and Kazi distinguishable--In Choi respondent's department failed to provide accurate information to applicants--Moreover, information provided after applicant had made specific inquiry with visa office-- Kazi not applicable here, given length of time applicant had from coming into force of IRPA to ultimate decision on application--Applicant had nearly five months to complete, add information to application--In Kazi application rejected only 33 days after change in law, an unreasonably short time period for applicant to become informed about new legislation--In those circumstances visa officer should have "promptly informed" applicant that he would now be assessed under new criteria--Application dismissed--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 2(2), 190-- Immigration and Refugee Protection Regulations, SOR/2002-227, s. 361.