[如何理解614的判决书】

lamjin

http://decisions.fct-cf.gc.ca/en/2012/2012fc758/2012fc758.html





这是判决书的目录


TABLE OF CONTENTS

• Background: Changes to the Federal Skilled Worker Program
• The Ministerial Instructions
• Pre-C50 representative case (Liang)
• MI1 representativecase (Gurung)
• Jobs, Growth and Long-Term Prosperity Act
• Issues
• Have the applicants met the requirements for an order compelling the Minister to process their applications?
• Was there Unreasonable Delay?
• Length of Delay12
• Justification forDelay – Discretion to Set Policy and Ministerial Instructions13
• Mr. Gurung’sapplication (MI1)19
• Do the applicants have a legitimate expectation that their applications would be processed on a first-in, first-out basis?
• Costs
• Certified Question

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[1]   The applicants seek orders of mandamus compelling the Minister of Citizenship and Immigration (Minister) to process their applications for permanent residence under the federal skilled worker (FSW) class.

原告寻求法院的强制令（mandamus), 让移民部必须处理他们的技术移民的（FSW）的 申请。

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[2]    The applications at issue were selected through a case management process as representative cases for two groups of applicants whose FSW applications have not been processed to completion. Applicant Dong Liang represents 671 applicants who submitted their applications before February 27, 2008, when amendments to the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) were enacted through the Budget Implementation Act, 2008, SC 2008, c 28 or “Bill-C50” (pre-C50 applications). Applicant Phool Maya Gurung represents 154 applicants who submitted their applications between February 27, 2008 and June 26, 2010, a period of time during which eligibility for a FSW visa was governed by a set of Ministerial Instructions (MI1 applications).  They both allege that the Minister has unreasonably delayed processing their applications by choosing to accord higher priority to applications submitted more recently and according to different criteria.
梁栋的案子被选为671个 227 前申请案的代表案子。 他们都宣称移民部长不合理的拖延了他们案子的处理。

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[3]
For the reasons that follow, the application in respect of Mr. Liang is granted, and dismissed in respect of Ms. Gurung.  No order is made in respect of the other applications held in abeyance pending the outcome of this litigation.  The Court has been informed that the parties have agreed on a protocol to address those cases based on the outcome of these two applications.

鉴于如下原因， 梁的申请批准了(granted)。 对等待诉讼结果的其他申请人的案子，法庭不做判决（No order)。
法庭也被通知，当事方已经达成协议，基于这两个申请案件的结果来处理其他的案子。


注： a protocol,  由于是protocol 前面是不定冠词a，是非特指， 是不明确指定。指代的protocol 可能双方理解的是不一样的。

lamjin

[4] -[13]
是对相关FSW 的法律背景，以及部长指令 MI涉及相关的情况作出说明。 如果有什么理解问题， 筒子们可以提出来。

lamjin

[14]
The representative applicant for the pre-C50 applications, Mr. Liang, is a citizen of China.  He submitted an application for permanent residence under the FSW class as an IT project manager.  It was received by CIC on October 11, 2007.  According to the Computer Assisted Immigration Processing System (CAIPS) notes in his file, he received a positive selection decision on March 10, 2010, having attained 81 points (well over the minimum required 67 points).

梁的案子是2007年10月11日被CIC接收的。 根据CAIPS 系统， 他的案子在2010年3月10日就已给了“通过选择的决定”（positive SD), 有81分。

注：注意两个时间点。

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[15]
Despite the positive selection decision, Mr. Liang’s application did not move to acceptance and remains outstanding.  When Mr. Liang inquired with CIC as to the timeline for completing his application he received an email response from the Beijing visa post, dated June 7, 2011, which stated in part:
At this time, we are not actively processing Federal Skilled Worker cases submitted before February 27, 2008 as we have sufficient applications in process to meet our assigned targets. Updates on the processing of applications submitted before February 27, 2008 will be provided when new information is available.


虽然梁的案子已经做了SD 了，但一直没有进展。 北京给的解释是没有名额了。

lamjin

[16]
The respondent characterizes this as a mere suspension of Liang’s application, suggesting that what the officer at the Beijing Visa post intended to say was that either or both of the global and occupational levels had been reached.  The Minister contends that this suspension does not amount to unreasonable delay, as it was now, following the 2008 amendments, authorized by legislation.

被告移民部说这只是暂停，那是全球或职业名额满了。并且2008修正案立法后，这种暂停并没有造成不合理的延误。

lamjin

[17] - [19] 是印度代表案子的情况。

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[20]-[22]  是说这个法The Jobs, Growth and Long-Term Prosperity Act ， 也就是C38 法案的。 来看一下。
[20]
The Jobs, Growth and Long-Term Prosperity Act, the Bill currently before Parliament implementing the 2012-2013 budget, amends the IRPA provision governing the processing of FSW applications. If passed, that Bill will amend the IRPA to include section 87.4(1), pursuant to which any outstanding application made before February 27, 2008 which has not received a positive selection decision before March 29, 2012 is terminated.  While this would not affect Mr. Liang’s application because he has a positive selection decision, this proposal would eliminate approximately 95% of the pre-C50 applications.

C38 法案仍在议会中讨论，如果通过，2008年2月27日前申请的，还没处理的，在2012年3月29前也没作出SD 的案子将被终止。但是这个将不影响梁的案子，因为他已经有了SD. 这个法案将会消除大约95%的pre-50的申请案子。

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[21]
Section 87.4(2) also provides that any final Court order made after March 29, 2012, in respect of the terminated applications is of no force and effect.

87.4（2）也规定： 2012年3月29日后，任何法庭的判决对已被终止的案子无效。


（这条表明：申请案如果已被C38终止了， 打官司是没用的。）

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[22] While both the applicants and the respondent sought to rely on the existence of this amendment currently before the House of Commons, it has not, and cannot, play any part in the disposition of these applications.  Proposed legislated is simply that—an amendment proposed by the Government that is subject to debate and vote in Parliament.  It may be withdrawn, it may be amended, or it may pass in its present form.  For these reasons, as the Supreme Court of Canada (SCC) said in Re: Resolution to amend the Constitution [1981] 1 SCR 753 at page 785, “Courts come into the picture when legislation is enacted and not before…”.  At a practical level, courts do not consider proposed legislation as it is premature and speculative.  At a Constitutional level, the principle maintains a clear demarcation between the roles played by the legislature and the judiciary.  The dialogue that occurs between the branches of government takes place in respect of actual legislation: Vriend v Alberta, [1998] 1 SCR 493.

在双方都在寻求利用这个C38修正案的时候，由于当前该法案仍在议会讨论中，所以在处理这些案子时，它没有而且也不能起任何作用。


（注意 ：判决书中用both the applicants and the respondent，表明原告和被告都想利用C38说事。）

lamjin

[23]
The issues for determination may be simply framed:
1.     Have the applicants met the requirements for an order compelling the Minister to process their applications?
2.     Do the applicants have a legitimate expectation that their applications would be processed on a first-in, first-out basis?      

   

现在的问题就简化为下面的两个问题：

1.  原告是否满足要求能否让法官作出判决，强制移民部长处理他们的案子。

2.  原告是否能让法官判决，他们的申请应该按先进先出（first-in, first-out)的原则处理。

（注：这是两个核心的问题！）

lamjin

[24] - [45]
是从现有法律上论辩第一个问题。 Have the applicants met the requirements for an order compelling the Minister to process their applications?。

lamjin

[46] - [49] 是对梁栋案子的结论。
[46]
As discussed above, Mr. Liang’s application has been outstanding since 2007, and he has awaited finalization since his positive selection decision in 2010. This is prima facie longer than the nature of the process requires.  The Ministerial Instructions cannot justify the delay, as they are inapplicable to his and other pre-C50 applications. There is no indication that Mr. Liang is himself responsible for any part of the delay.  


梁的案子超出正常处理时间。 部长指令不是这种延误的理由，因为部长指令（MIs）不适合梁和其他pre-50的案子。 也没有迹象表明， 梁自己对这种延误负责。

lamjin

[47]
Furthermore, I am not persuaded by the Minister’s argument that Mr. Liang had an adequate alternative remedy. The Minister argues that Mr. Liang could have applied under MI1 and therefore had his application processed more quickly.  The Minister notes that an applicant could have had two concurrent applications, his existing pre-C50 application and a subsequent MI1 application.

而且， 我（法官）没有被部长的辩词说服。

lamjin

[48]
The Minister’s argument is unsupported by the evidence.  The Operational Policy directive prevailing at the time indicates that the Department did not know which route would in fact be faster.  Submitting a new FSW application under the MI1 instructions may have been an alternative open to Mr. Liang, but it would not have been adequate.

部长的辩词也没有证据的支持。

lamjin

[49]
I therefore find that Mr. Liang is entitled to an order of mandamus.  With respect to the 670 other pre-C50 applicants, the Court has no evidence before it with respect to the factors unique to each particular application which may account for the delay.  Part or all of the delay may be attributable to the conduct of the applicant or a third party over whom the government had no control.  Thus, each case must be determined on a case-by-case basis, and with the exception of Mr. Liang, I make no finding save that in respect of the remaining pre-C50 applicants, a prima facie case of delay has been established and the Ministerial Instructions, in light of section 120 of the Budget Implementation Act, 2008, above, do not constitute a satisfactory justification for that delay.

我（法官）因此发现， 梁的案子有资格获得法庭命令（mandamus）。对于其他的670人的案子，法庭不知道每个案子的延误是由什么因素造成的。 部分或全部的延误可能是由于申请人的行为或第三方的行为造成的，这些是政府控制不了的。这样每个案子必须个案处理（case-by-case). 除了梁的案子（有判决外），对于其他pre-C50 的申请人，除了发现事实上是被延误了外，我（法官）没有判决， 并且部长指令并不能对这种延误作出合理的解释。


（注：这条是具有结论性质的。法官只确认部长指令给梁造成延误，给予判决外，对其他670人需要个案情况处理，不做判决。）

lamjin

[50] - [52] 是印度人的代表案子。

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[53]-[55] 是有关 “问题2"的，Do the applicants have a legitimate expectation that their applications would be processed on a first-in, first-out basis?
[53]   The applicants argue that they have a legitimate expectation to have their applications processed on a first-in/first-out (FIFO) basis.  The Minister submits that there is nothing in the IRPA or case law to support a requirement of FIFO processing as a matter of procedural fairness.  I agree. The doctrine of legitimate expectation is intended to ensure that if a decision-maker makes representations that a certain procedure will be followed, it is in fact followed. This does not, in my view, include the order in which applications are processed, and the applicants have not presented any evidence or argument to persuade me otherwise.

移民部长说， 移民法不支持，也没有实际案例支持这中先进先出的要求。
按照法官的观点，法官也不会下这样的判决。 而且原告也没提供证据和理由说服法官。