the 1978 Regulations until March 31, 2003. After that date, any pending applications will be awarded units of assessment in accordance with the IRPR. To ease the transition process, subsection 361(5) of the IRPR provides that applicants in the federal skilled worker class are only required to meet a pass-mark of 70 points, as opposed to the 75-point pass-mark imposed upon new applicants. The applicants fear that they may be refused under the new selection criteria contained in the IRPR and are seeking writs of mandamus compelling the Minister to either award them units of assessment under the former selection grid or assess their applications prior to March 31, 2003.

[5]                 The second category consists of 22 applicants who applied for permanent residence after January 1, 2002 but before June 28, 2002, and they are identified in Schedule B attached hereto. While these applicants also applied under the former Act, they have been treated differently than the first category of applicants as a result of the transitional provisions of the IRPR. As of June 28, 2002, all of the applicants in this category are to be assessed under the selection criteria in the IRPR and those in the federal skilled worker class must meet a pass-mark of 75 points. The rationale behind this policy, as identified by the respondent, is that the applicants in this category applied after the IRPR were first pre-published on December 17, 2001, and therefore had notice of the new selection criteria at the time of their applications. The applicants in this category are seeking writs of mandamus requiring the Minister to assess their applications in accordance with the selection criteria contained in the 1978 Regulations.

  

ISSUES

•         This case raises two issues:

1.                    does IRPA and the new Regulations retrospectively remove the applicants' vested right to have their applications for permanent residence in Canada assessed under the former Act and 1978 Regulations?; and,

2.         are the applicants entitled to a writ of mandamus directing the respondent assess and award units of assessment in accordance with the selection criteria in the former Act and the 1978 Regulations?

  

LEGISLATIVE FRAMEWORK

[7]                 The provisions that govern the treatment of these applications are set out in this section.

IRPA (the new Act)

Objectives - Immigration

3. (1) The objectives of this Act with respect to immigration are

[...]

f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces;

[...]

Object en matière d'immigration

3. (1) En matière d'immigration, la présente loi a pour objet_:

[...]

f) d'atteindre, par la prise de normes uniformes et l'application d'un traitement efficace, les objectifs fixés pour l'immigration par le gouvernement fédéral après consultation des provinces;

[...]

Regulations

5. (1) Except as otherwise provided, the Governor in Council may make any regulation that is referred to in this Act or that prescribes any matter whose prescription is referred to in this Act.

(2) The Minister shall cause a copy of each proposed regulation made pursuant to sections 17, 32, 53, 61, 102, 116 and 150 to be laid before each House of Parliament, and each House shall refer the proposed regulation to the appropriate Committee of that House.

(3) A proposed regulation that has been laid before each House of Parliament under subsection (2) does not need to be so laid again, whether or not it has been altered.

(4) The Governor in Council may make the regulation at any time after the proposed regulation has been laid before each House of Parliament under subsection (2).

   

Règlements

5. (1) Le gouverneur en conseil peut, sous réserve des autres dispositions de la présente loi, prendre les règlements d'application de la présente loi et toute autre mesure d'ordre réglementaire qu'elle prévoit.

(2) Le ministre fait déposer tout projet de règlement pris en vertu des articles 17, 32, 53, 61, 102, 116 et 150 devant chaque chambre du Parlement et la chambre renvoie ce projet de règlement à son comité compétent.

Modification du projet de règlement

(3) Il n'est pas nécessaire de déposer de nouveau le projet de règlement devant le Parlement même s'il a subi des modifications.

(4) Le gouverneur en conseil peut prendre le règlement après le dépôt du projet de règlement devant chaque chambre du Parlement.

[8]                 Section 190 of the IRPA provides for the application of the IRPA to applications pending on June 28, 2002:

Application of this Act

190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.

Application de la nouvelle loi

190. La présente loi s'applique, dès l'en-trée en vigueur du présent article, aux demandes et procédures présentées ou ins-truites, ainsi qu'aux autres questions soule-vées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise.

  

[9]                 Section 201 of the IRPA grants the Governor-in-Council the authority to make regulations dealing with the transition from the former Act to the IRPA:

Regulations

201. The regulations may provide for measures regarding the transition between the former Act and this Act, including measures regarding classes of persons who will be subject in whole or in part to this Act or the former Act and measures regarding financial and enforcement matters.

Règlements

201. Les règlements régissent les mesures visant la transition entre l'ancienne loi et la présente loi et portent notamment sur les catégories de personnes qui seront assujet-ties à tout ou partie de la présente loi ou de l'ancienne loi, ainsi que sur les mesures financières ou d'exécution.

The New Regulations

  

[10]            The relevant transitional regulation made by the Governor-in-Council is section 361 of the new Regulations. The relevant portions of that section are reproduced here:

Equivalent assessment

361. (1) If, before the day on which this section comes into force, a foreign national referred to in subsection (2) has been assessed by a visa officer and awarded the number of units of assessment required by the former Regulations, that assessment is, for the purpose of these Regulations, an award of points equal or superior to the minimum number of points required of

(a) a skilled worker, in the case of a foreign national described in paragraph (2)(a);

(b) an investor, in the case of a foreign national described in paragraph (2)(b);

(c) an entrepreneur, in the case of a foreign national described in paragraph (2)(c); or

(d) a self-employed person, in the case of a foreign national described in paragraph (2)(a).

Appréciation équivalente

361.(1) Si, avant l'entrée en vigueur du présent article, un étranger visé au paragraphe (2) a été évalué par un agent des visas et a obtenu le nombre de points d'appréciation exigés par l'ancien réglement, cette évaluation confère, pour l'application du présent règlement, un nombre de points égal ou supérieur au nombre minimum de points requis pour se voir attribuer:

a) la qualité de travailleur qualifié, dans le cas de l'étranger visé à l'alinéa (2)a);

b) la qualité d'investisseur, dans le cas de l'étranger visé à l'alinéa (2)b);

c) la qualité d'entrepreneur, dans le cas de l'étranger visé à l'alinéa (2)c);

d) la qualité de travailleur autonome, dans le cas de l'étranger visé à l'alinéa (2)a).

Applicant for immigrant visa

(2) Subsection (1) applies in respect of a foreign national who submitted an application under the former Regulations, as one of the following, for an immigrant visa that is pending immediately before the day on which this section comes into force:

(a) a person described in subparagraph 9(1)(b)(i) or paragraph 10(1)(b) of the former Regulations;

(b) an investor; or

(c) an entrepreneur.

Application before January 1, 2002

(3) During the period beginning on the day on which this section comes into force and ending on March 31, 2003, units of assessment shall be awarded to a foreign national, in accordance with the former Regulations, if the foreign national is an immigrant who,

(a) is referred to in subsection 8(1) of those Regulations, other than a provincial nominee; and

(b) before January 1, 2002, made an application for an immigrant visa under those Regulations that is still pending on the day on which this section comes into force and has not, before that day, been awarded units of assessment under those Regulations.

Units of assessment

(4) If, before the day on which this section comes into force, a foreign national referred to in subsection (3) has been assessed by a visa officer and awarded the number of units of assessment required by the former Regulations, that assessment is, for the purposes of these Regulations, an award of points equal or superior to the minimum number of points required of a federal skilled worker, an investor, an entrepreneur or a self-employed person, as the case may be.

Demandes de visa d'immigrant

(2) Le paragraphe (1) s'applique à l'étranger qui a présenté une demande de visa d'immigrant conformément à l'ancien règlement Š pendante à l'entrée en vigueur du présent article Š à titre, selon le cas :

a) de personne visée au sous-alinéa 9(1)b)(i) ou à l'alinéa 10(1)b) de l'ancien règlement;

b) d'investisseur;

c) d'entrepreneur.

Demandes : avant le 1 er janvier 2002

(3) Pendant la période commençant à la date d'entrée en vigueur du présent article et se terminant le 31 mars 2003, les points d'appréciation sont attribués conformément à l'ancien règlement à l'étranger qui est un immigrant qui:

a) d'une part, est visé au paragraphe 8(1) de ce règlement, autre qu'un candidat d'une province;

b) d'autre part, a fait, conformément à ce même règlement, une demande de visa d'immigrant avant le 1 er janvier 2002, pendante à l'entrée en vigueur du présent article, et n'a pas obtenu de points d'appréciation en vertu de ce règlement.

Points d'appréciation

(4) Si, avant l'entrée en vigueur du présent article, l'étranger visé au paragraphe (3) a été apprécié par un agent des visas et a obtenu le nombre de points d'appréciation exigés par l'ancien règlement, cette appréciation confère, pour l'application du présent règlement, un nombre de points égal ou supérieur au nombre minimum de points requis d'un travailleur qualifié (fédéral), d'un investisseur, d'un entrepreneur ou d'un travailleur autonome, selon le cas.

Federal Skilled Worker Class

(5) If a foreign national referred to in paragraph (2)(a) made an application before January 1, 2002 for an immigrant visa and has not, before April 1, 2003, been awarded the number of units of assessment required by the former Regulations, they must obtain a minimum of 70 points based on the factors set out in paragraph 76(1)(a) to become a permanent resident as a member of the federal skilled worker class.

Catégorie des travailleurs qualifiés (fédéral)

(5) Si les points d'appréciation exigés par l'ancien règlement n'ont pas été attribués avant le 1 er avril 2003 à l'étranger visé à l'alinéa (2)a) qui a demandé un visa d'immigrant avant le 1 er janvier 2002, ce dernier doit obtenir un minimum de soixante-dix points au regard des facteurs visés à l'alinéa 76(1)a) du présent règlement pour devenir résident permanent au titre de la catégorie des travailleurs qualifiés (fédéral).

  

FACTS

Legislative History

(a)         Committee Hearings

  

[11]            On December 15, 2001, the Respondent tabled the proposed new Regulations which created a new selection system for immigrants and transitional provisions. Under subsection 5(2) of IRPA, the Respondent must table proposed Regulations with respect to certain subject matters before Parliament, and Parliament shall refer the proposed Regulations to the appropriate Parliamentary Committee.

[12]            In January, February and March, 2002, the House of Commons Standing Committee on Citizenship and Immigration (the "Committee") held hearings to consider the proposed new Regulations. It is clear that there was wide-spread condemnation by the Committee that the Regulations will apply to, and prejudice, the thousands of applicants for an immigrant visa who applied under the former Regulations before the government announced the new Regulations. The proposed Regulations were to take effect at the same time as the new Act, viz., June 28, 2002.

[13]            On February 26, 2002 the Respondent "accepted the fairness and equity concerns" raised before the Committee that applicants for immigrant visas filed before the new Regulations were announced ought be assessed under the selection criteria in effect at the time they applied. The Minister announced that such applicants would continue to be selected under the current selection criteria until January 1, 2003, and that skilled workers and business immigrants who have not received a selection decision prior to January 1, 2003, would be subject to the new selection criteria under the new Regulations but with a reduced pass mark of 70 points instead of 75. The Respondent also announced that visa applicants whose applications have not received a preliminary evaluation called a paper screening, can request a recall of their application and request a refund of the processing fee since they originally applied with the expectation that they would be assessed under the old selection criteria.

[14]            This announcement did not allay the fairness and equity concerns of the Parliamentarians on the Committee. On March 12, 2002 Ms. Joan Atkinson, Assistant Deputy Minister, Policy and Program Development, Department of Citizenship and Immigration appeared before the Committee. She testified about the six month extension announced by the Minister and said at page 14 of the transcript:

"We feel that the six months gives us adequate time to address a good proportion of that backlog [...] again, the objective is to try to mitigate the impact of retroactivity and mitigate the impact of this transition period [...]

  

[15]            The Parliamentarians on the Committee were not satisfied. They questioned Ms. Atkinson about the number of applications in the system before the proposed Regulations were announced that would not be processed by January 1, 2003. At page 25 of the transcript, Ms. Atkinson said:

[...] our international region believed that by January 1, 2003, they will hopefully have dealt with about 90,000 applications of those 120,000 people awaiting a selection decision. So that's a little better picture than the one I just gave you [...]

From this point forward, the Committee understood that there would be 30,000 applications filed under the old system which would not be processed by January 1, 2003. Members of the Committee decided that the Regulations ought to be amended to extend the time for processing these old applications until March 31, 2003 so that they can be processed under the old selection criteria. The witness for the Respondent was asked if these applications can be given a priority so that they can be dealt with under the old system by this time. Ms. Atkinson implied at page 28 of the transcript that this could be done:

We can look at how we can put resources toward trying to deal with those individuals who are in that inventory and to process as many as we can under the old system before the new system has to apply. That's an option that could be pursued. Without additional resources, we have to decide where we would take resources from to put into places such as Beijing and other places where we have large inventories. That can be done.

  

(b)        Committee Report                                                                                                                          

[16]            In March 2002 the House of Commons Standing Committee on Citizenship and Immigration issued a Report regarding "The Regulations under the Immigration and Refugee Protection Act". In the first section of the Report under the heading entitled "Retroactivity", the Committee stated:

[...] Unfortunately, by January 1, 2003 there will still be approximately 30,000 files remaining.

Although the Committee appreciates the government's responsiveness on this issue, we have concluded that the revised proposal does not go far enough. Those who will not have received a selection decision before the end of 2002 have the same hopes and dreams of immigrating to Canada as those who will receive a decision before that time. We believe that more of an effort can and must be made to process as many of these applications as possible by extending the deadline by three months.

[...] We therefore recommend that processing of applications received before December 31, 2001 should continue until the end of March, 2003.

  

[17]            The Committee recommended the extension together with four other recommendations so that applications filed before December 31, 2001 would be processed by March 31, 2003. These four other recommendations were as follows:

2.          the visa posts with a significant inventory should reassess their general policies regarding personal interviews so as to process more applications before the deadline;

• 3.                    special teams should be sent to visa posts with large inventories to process backlogs so that       applicants are not disadvantaged by their place of application; and,
• 4.                    for fairness and equity the government should increase resources dedicated to processing the     applications.

  

Respondent disregarded Committee's recommendations

[18]       When the Governor-in-Council passed the proposed Regulations, it accepted the recommendation from the Parliamentary Committee and extended the time frame from December 31, 2001 to March 31, 2003. However, the evidence before this Court makes clear that while the new Regulations extended the deadline until March 31, 2003:

1.          no corporate commitment was made to process the inventory on a priority basis to clear this backlog;

• 2.                    the visa posts with a significant inventory did not reassess their general policies regarding personal interviews so as to process more applications before the deadline;
• 3.                    the respondent did not send special teams to visa posts with large inventories to process backlogs; and,
• 4.                    the respondent did not increase resources dedicated to processing these applications.

  

In this way, the respondent ignored the Parliamentary Committee's recommended course of action so as to be able to process the applications filed before January1, 2002 by the extended deadline of March 31, 2003.

Purpose and intent of the extension to March 31, 2003

[19]       The purpose and intent of extending the time frame for assessing applications filed before January 1, 2002 was to provide time to assess those applications. The Minister first extended the time line from June 28, 2002 until December 31, 2002 to "address concerns about fairness and equity". Since it was clear to the Committee that there would still be 30,000 applications in this category pending on December 31, 2002, the Parliamentary Committee recommended the time frame be further extended to March 31, 2003.

The Numbers

[20]       When this matter was heard the respondent did not have a reasonable grasp on the number of applications for immigrant visas which were filed before January 1, 2002, and which will not be processed by March 31, 2003. In evidence before the Committee on March 12, 2002, the officials for the respondent advised the Committee that there would be 30,000 such applications not processed by December 31, 2002. Based on the evidence before this Court, which was subject to cross-examination, it is clear that the respondent provided the Committee with significantly incorrect numbers. Rather than the 30,000 such applications expected to be outstanding as of December 31, 2002, the evidence established that there will be 80,000 to 120,000 such applications expected to be outstanding as of March 31, 2003. Of course, this hearing is only with respect to 124 applications.

The adverse effect of the new Regulations on the Applicants

[21]       It is not necessary to detail the differences between the former Regulations and the new Regulations on the applicants. It is clear that the applicants are concerned that they will be denied a visa under the new Regulations, while they would be granted a visa if they are assessed under the 1978 Regulations. For this reason, the applicants believe that they will lose important rights to a Canadian visa if they are to be assessed under the selection criteria in the new Regulations. The Court is satisfied that the applicants have legitimate concerns in this regard.

Delays and the visa application process

[22]       The 124 applications, which are the subject of this consolidated application, were filed at 21 different overseas visa offices. The evidence is clear that these offices have experienced exponential increases in immigrant visa applications and that the visa offices only process a limited number of

applicants per year in accordance with a quota assigned by the respondent. As a result, there is a backlog at many visa posts where applicants must wait years for an interview. The visa application process is explained at the respondent's website dated June 5, 2002 entitled "Canadian Immigration Missions Overseas - A Quick Guide to Visa Offices; Where They Are, What They Do and Who Works There". The visa application process is explained as follows:

The application is assessed at a visa office. This involves confirming the identity of the applicant, determining the eligibility for immigration, and determining if the applicant meets security, medical and criminal requirements. Sometimes, this can be done through the mail. Complicated cases may require interview. The visa officer must make the decision whether to issue or refuse the visa.

The evidence established that the visa application is initially "paper screened" by a case analyst who makes a preliminary "immigrant assessment record summary". At this stage, the visa applicant is assigned a number of units of assessment, and a visa officer decides whether the application is denied on the basis of the preliminary assessment, whether the application is granted without requiring an interview, or whether the applicant should be scheduled for an interview. The evidence established that this paper screening step only takes between 10 and 15 minutes. In 2001, for all immigrant categories worldwide, 48% of the applications were granted at this stage without requiring an interview.

[23]       If an interview is required following the paper screening, the applicants are placed in a notional queue, which visa offices frequently reported takes 15 months. The average length of the interview, when it does take place, is about 1 hour. At that point, the visa officer assesses a final award of units of assessment unless certain matters arise at the interview which require verification.

Example of the delay

[24]       To give one actual example, the Court will refer to the application filed by Mr. Majumdar Anup Kumar (hereinafter referred to as Mr. Majumdar), Court Docket No. IMM-3077-02.

• (e)                  Mr. Majumdar filed an application for permanent residence in Canada at the Canadian visa office in Hong Kong on June 1, 1999. Mr. Majumdar is a mechanical engineer with a Bachelor of Mechanical Engineering and with twelve years work experience. All the necessary documents and the required visa processing fee in the amount of $1,100 were sent with the application.
• (f)                   On August 5, 1999 the Hong Kong visa office acknowledged receipt of the visa application with the correct fee payment, assigned the application a file number, and advised that an initial assessment of the application would be conducted within the next "6 months".
• (g)                  On October 21, 1999 the Hong Kong visa office advised that the initial assessment of the application had been completed and that the applicant would be notified within "15 months" regarding an interview date and that interviews generally take place 2-3 months following the notification letter (15 months from October 21, 1999 is January 21, 2001).
• (h)                  Since the 15 month period expired without any contact from the visa office, on June 12, 2001 (20 months later), counsel for the applicant sent a letter to the program manager for the respondent at the Hong Kong visa office requesting an interview date and status report.
• (i)                    There was no response to this letter so counsel sent a "reminder fax" to the program manager on August 22, 2001. The fax noted that counsel had left "several telephone messages on the program manager's voice mail".
• (j)                   As of the date of the hearing, Mr. Majumdar has not been contacted by the visa office in Hong Kong and has not been scheduled for an interview, notwithstanding that his application was filed 44 months ago.

[25]       Mr. Majumdar deposed that he would not qualify under the new immigration selection criteria for skilled workers, that he would have qualified for a visa under the former Regulations, and that he had invested more than $6,000 and over three years of his life toward his application for a Canadian visa.

Immigration revenue from cost recovery fees charged visa applicants

[26]       Immigration revenue from cost recovery fees that were charged to visa applicants and collected by all visa missions for the fiscal year end of March 31, 2002 totalled $310 million. The budget expenditures for overseas visa offices in 2002 was $185.8 million. Accordingly, the government collected $125 million more in visa application cost recovery revenue than it spent in 2002 for overseas visa offices. The evidence established that this revenue is deposited in the Consolidated Revenue Fund. The evidence also established that the respondent did not make any request in 2002 for additional resources or budget allocations to process the backlog of visa applications by March 31, 2003.

SWAT Teams

[27]       The evidence established that the respondent sent special teams, called SWAT teams, to overseas visa offices in 2001 to clear backlogs at missions with large inventories. The respondent requested and obtained extra resources from the government in 2001 for this purpose. The Committee recommended that such SWAT teams be used in 2002 to clear backlogs. However, the respondent made no request for extra resources for such SWAT teams to clear backlogs prior to March 31, 2003. The evidence of Mr. Daniel Jean, Director General of International Region, Citizenship and Immigration Canada established that such SWAT teams can be put together from experienced officials based in Ottawa and that the necessary training for the SWAT teams takes two weeks.

  

Number of officials processing visa applications overseas

[28]       The actual number of immigration officials in overseas offices processing applications for visas declined in 2002 compared with 2001. Immigration staff at overseas visa offices in 2002 totalled 1,366, compared with 1,403 in 2001.

  

No effort to process backlog before March 31, 2003

[29]       In the cross-examination of Mr. Daniel Jean, the principal witness for the respondent, Mr. Jean said there is no temporary objective, program or personnel in place to clear the backlog of applications because the respondent is meeting its immigration target levels. Mr. Jean confirmed that there were no new resources deployed to clear the backlog.        

Hong Kong Visa Office closed for three months

[30]       About 11,000 applications received before January 1, 2002 in Hong Kong will likely not be processed as of March 31, 2003. The Hong Kong visa office closed for three months in the summer of 2002 and thereby stopped assessing applicants. The purpose of the closure was to train the Hong Kong staff on the new Act.

Applicants are not queue jumpers

[31]       It is important to note that the applicants in this case have followed the Canadian rules and Canadian law to seek admission to Canada. They are not "queue jumpers". Moreover, these applicants are generally skilled workers who believe that they would qualify for landing in Canada under the former Regulations.

ANALYSIS

Retrospectivity

[32]       The applicants argue that, despite the repeal of the former Immigration Act by section 274(a) of the IRPA, the rights acquired under the former Immigration Act survive by virtue of section 43 of the Interpretation Act, which preserves in force the rights and duties accrued under repealed legislation. The applicants further contend that such survival of their rights under the former Immigration Act is not precluded by section 190 of the IRPA, and that the retrospective operation of section 361 of the IRPR is not authorized in the framework legislation.

[33]       In order to assess the merits of this argument, the Court has to look at the specific statutory language used in the transitional provisions of the IRPA and the Regulations made under those provisions. The Court will presume that legislation is not intended to have a retrospective effect when the provision substantially affects the vested rights of a party, see Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301. As this is only a presumption, it can be rebutted. As Mr. Justice Duff stated in Upper Canada College v. Smith (1920), 61 S.C.R. 413 at p. 419:

[...] that intention may be manifested by express language or may be ascertained from the necessary implications of the provisions of the statute, or the subject matter of the legislation or the circumstances in which it was passed may be of such a character as in themselves to rebut the presumption that it is intended only to be prospective in its operation.

[34]       It is also now well-established that the Court can examine the legislative history of a provision when interpreting its meaning, see R. v. Heywood, [1994] 3 S.C.R. 761 at pp. 787-789.

[35]       Upon considering the express words used by Parliament in subsection 190 and 201 of the IRPA, the Court is satisfied that Parliament intended the new Act apply to applications for permanent residence filed under the former Act, and that it delegated to Governor-in-Council the authority to make regulations that would set out the transitional legal regime for such applications. In other words, the statutory language clearly conveys the legislative intent to apply the new Act retrospectively and to authorize regulations with retrospective effect. It is trite law that Parliament can expressly enact retroactive or retrospective legislation, and this clear expression overrides the presumption against retroactivity or retrospectivity, which is identified in section 43 of the Interpretation Act.

[36]       The Regulations, in full compliance with the authorizing section of the Act (section 201), make certain transitional exceptions from the general retrospective regime. These exceptions only apply to applications filed before January 1, 2002. In particular, section 361(3) provides that, until March 31, 2003, units of assessment shall be awarded to economic class applicants who applied before January 1, 2002 in accordance with the former Regulations. Section 361(5) provides that,

  

beginning from April 1, 2003, such applicants will be assessed under the new Regulations but will have to obtain a minimum of 70 points (as opposed to the general pass-mark of 75) to qualify in the federal skilled worker class. In my opinion, these provisions clearly express the intent of the Governor-in-Council to apply the new selection system to all applicants before January 1, 2002 who have not been assessed prior to April 1, 2003, with the concession that applicants who applied before January 1, 2002 will be given a 5 point bonus under the new system.

[37]       This interpretation of the transitional provisions is supported by jurisprudential precedent. In Chen v. Canada (Secretary of State), (1995) 91 F.T.R.76, the Federal Court of Appeal was concerned with interpretation of section 109 of An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49 (commonly known as Bill C-86) - a provision quite similar in language to section 190 of the IRPA. Rothstein J. held that such language was sufficiently clear to convey the legislative intent that the law should apply retrospectively (at para. 12):

[...] Parliament, by section 109, has clearly stated how amendments to the Immigration Act under Bill C-86 are to apply. Such express statutory provision overrides any common law rule or general provision in the Interpretation Act applicable in the absence of such legislation.

I therefore conclude that section 361 of the IRPR is validly authorized retrospective legislation and should operate according to its terms. This means that the applications filed after January 1, 2002 are to be assessed under the new Regulations, and applications filed before January 1, 2002 shall be assessed under the old Regulations up until March 31, 2003.

  

Mandamus

[38]       Mandamus lies to compel the performance of a public legal duty which a public authority refuses or neglects to perform although duly called upon to do so, Re Minister of Manpower and Immigration and Tsiafakis (1977), 73 D.L.R. (3d) 139 (Fed. C.A.).

Criteria for Mandamus

[39]       In Apotex Inc. v. Canada (A.G.), [1994] 1 F.C. 742 (C.A.), aff'd [1994] 3 S.C.R. 1100, the Federal Court of Appeal conducted an extensive review of the jurisprudence relating to mandamus and outlined the following conditions that need to be satisfied for the Court to issue a writ of mandamus:

(1) There must be a public legal duty to act.

(2) The duty must be owed to the applicant.

(3) There is a clear right to the performance of that duty, in particular:

(a) the applicant has satisfied all conditions precedent giving rise to the duty;

(b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.

(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 discretion finds no equitable bar to the relief sought.

(7) On a "balance of convenience" an order in the nature of mandamus should issue.

Criteria 1-2:     Duty to Act - Statutory Source

[40]       The respondent acknowledges in paragraph 58 of his memorandum of fact and law that his officials have a statutory duty to process the applicants' visa applications. Therefore the first two requirements for mandamus are met. There is a public duty to act and the duty is owed to the applicants. In order to ascertain the content of that duty, it is useful to refer to its statutory sources.

[41]       When the applicants submitted their applications for permanent residence, the formerAct was still in force. Section 5(2) of the former Act imposes on the respondent a clear obligation to grant landing to an applicant for permanent residence who meets the relevant statutory requirements:

5(2) Where immigrant shall be granted landing - An immigrant shall be granted landing if he is not a member of an inadmissible class and otherwise meets the requirements of this Act and the regulations.

Further, subsection 9(2) of the former Act imposes a positive duty on the visa officer to assess every application for permanent residence in accordance with the Act and its attendant Regulations:

9(2) Assessment by a visa officer - An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing.

That duty of the visa officer is continued by the IRPA, which came into force on June 28, 2002. Pursuant to section 190 of the IRPA, all applications "pending or in progress" became governed by the IRPA upon its coming into force. Under subsection 2(2) of the IRPA, references to "this Act"

(i.e. IRPA) include regulations made under it (IRPR). Therefore, since June 28, 2002, the applicants' applications are governed by the IRPA and the IRPR. Under subsection 361(3) of the IRPR, the economic class applications filed prior to January 1, 2002 must continue to be assessed according to the selection system in force at the time of their submission until March 31, 2003.