[传说中的二月协议Protocol ???】

lamjin

IMM-7502-11  FEDERAL COURT
BETWEEN:
MOHAMMAD MEHDI EMAM Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent


PROTOCOL REGARDING FSW MANDAMUS LITIGATION

A.    BACKGROUND

1.   Amendments to the Immigration and Refugee Protection Act in February 2008 (via the Budget Implementation Act or “Bill C-50”) removed the legal obligation of CIC to process every application or request received.  The amendments also empowered the Minister to establish, through Ministerial Instructions, priorities for processing applications and requests according to Government of Canada goals for immigration, and to set the conditions for reduced wait times and greater system efficiency.   

2.   On November 29, 2008, the Government of Canada published in the Canada Gazette the first Ministerial Instructions issued by the Minister of Citizenship and Immigration under subsection 87.3 of the Immigration and Refugee Protection Act (“MI-1”).  MI-1 applied to applications and requests received on or after February 27, 2008, and limited the processing of new Federal Skilled Worker applications to those that met eligibility criteria, including whether an applicant had experience in one or more of 38 in-demand occupations.  In addition to the priority occupation list, MI-1 included two other eligibility criteria for new FSW applications based on labour market responsiveness: (1) whether an applicant had an arranged offer of employment and, (2) whether an applicant was legally residing in Canada as a temporary foreign worker or international student.  MI-1 provided for prioritized processing of eligible new applications.

3.   On 26 June 2010, the Minister introduced a second set of Ministerial Instructions (“MI-2”). These new instructions included an updated list of in-demand work experience under which new applicants were eligible to apply for processing. They also introduced intake caps on new applications. A maximum of 1,000 applications per specified occupation would be processed, and an overall cap of 20,000 was imposed on new FSW applications during the 1 July 2010 – 30 June 2011 processing year.

4.   On June 27, 2011, a third set of Ministerial Instructions (“MI-3”) were issued. These instructions further reduced intake of new FSW applications, introducing an overall annual cap of 10,000 new applications, with sub-caps of 500 applications per eligible occupation. The list of eligible occupations introduced in MI-2 was not changed.  

5.   Applicants who have applied under the list of eligible occupations introduced under MI-2 have highest processing priority, followed by those individuals who have applied under MI-1.  Applications submitted prior to the enactment of Bill C-50 continue to be processed, albeit with lesser priority.  

B.   TWO CATEGORIES OF LITIGANTS

6.   This mandamus litigation concerns two categories of FSW visa applicants: those who applied before 27 February 2008, i.e., pre-Bill C-50 (“Class I”), and those who applied between 27 February 2008 and 25 June 2010, i.e. MI-1 applicants (“Class II”). Of the first 560 litigants, 76% are Class I applicants and 24% are Class II applicants.


C.   COMMON ISSUES

7.   The Applicants are applying for mandamus on the basis that their FSW applications remain outstanding.

8.   For the Class I contingent, the Applicants are challenging the Minister's departure from the processing practice that was in place when they applied.  That practice was generally on a first-in-first-out (FIFO) per visa post processing policy, with exceptions and variations for file specific reasons.

9.   For the Class II litigants, the Applicants allege that the Minister represented that their applications under MI-1 would be processed within one year.  They also take issue with the decision to accord higher priority to the processing of applications received after 26 June 2010.

10.   The Minister's position in both cases is that Ministerial Instructions, authorized by Bill C-50, are a legally valid approach to processing FSW applications and that the preconditions for the issuance of mandamus have not been met.


D.   REPRESENTATIVE CASES

11.   Both parties agree that proceeding by way of representative cases would be the most efficient method of determining the common issues.

12.   There will be two representative cases – one from each of the two classes listed above.  The Applicants will choose a representative case from each class.

13.   If the Court disposes of the representative cases on the basis of the Ministerial Instructions, the Applicants agree that this would therefore result in all the applications being dismissed. Accordingly, the other Applicants will discontinue their applications should the Federal Court's decision not be appealed to the Federal Court of Appeal.   

14.   If the Respondent's arguments fail, the Respondent will be guided by the decisions in the representative cases, subject to appeal rights being exhausted, on the possible disposition of the remaining cases held in abeyance.


E.   TIMELINE FOR PERFECTION OF APPLICATIONS

15.   The timeline set out in the Federal Courts Immigration and Refugee Protection Rules (the “Rules”) will be followed, that is, the Applicants will have 30 days from the date of the transmission of the Certified Tribunal Records to serve and file their application records in the two representative cases.  The Respondent will have 30 days from the date of service of the Applicants' application records to file his memorandum of argument and supporting affidavit(s).
16.   Should the Court grant leave, the procedures mandated by the Rules shall be followed, except that the time for service and filing of the Applicants' further memorandum of argument, if any, shall, if cross-examinations occur, be 15 days from the date of production of the transcript(s).  The time for service and filing of the Respondent's further memorandum of argument shall be 15 days following service of the Applicants' memorandum of argument.
17.   Pending the outcome of the representative cases, all other related cases shall be held in abeyance, along with any new applications for leave and judicial review subsequently filed and brought to the attention of the Case Management Judge.  The Respondent shall continue to be relieved of the requirement to file a Notice of Appearance in any new leave application filed.

lamjin

1.  不知这个是否是大忽悠们不敢那出来，却被视为最后法宝的，传说中的那个协议？
2. 当原告和被告都涉及到这个词 protocol 时， 是否双方都会认同是指这个份协议protocol ？

lamjin

甭管是不是， 要不大家也都一起看看都说了啥？

lamjin

A.    BACKGROUND  背景情况

1.   Amendments to the Immigration and Refugee Protection Act in February 2008 (via the Budget Implementation Act or “Bill C-50”) removed the legal obligation of CIC to process every application or request received.  The amendments also empowered the Minister to establish, through Ministerial Instructions, priorities for processing applications and requests according to Government of Canada goals for immigration, and to set the conditions for reduced wait times and greater system efficiency.   
Bill C-50 修正案已经取消了CIC 必须处理每个申请的法律责任。而且授权部长通过部长指令（MI）优先处理案子。


2.   On November 29, 2008, the Government of Canada published in the Canada Gazette the first Ministerial Instructions issued by the Minister of Citizenship and Immigration under subsection 87.3 of the Immigration and Refugee Protection Act (“MI-1”).  MI-1 applied to applications and requests received on or after February 27, 2008, and limited the processing of new Federal Skilled Worker applications to those that met eligibility criteria, including whether an applicant had experience in one or more of 38 in-demand occupations.  In addition to the priority occupation list, MI-1 included two other eligibility criteria for new FSW applications based on labour market responsiveness: (1) whether an applicant had an arranged offer of employment and, (2) whether an applicant was legally residing in Canada as a temporary foreign worker or international student.  MI-1 provided for prioritized processing of eligible new applications.


MI-1 部长1号指令的情况。

3.   On 26 June 2010, the Minister introduced a second set of Ministerial Instructions (“MI-2”). These new instructions included an updated list of in-demand work experience under which new applicants were eligible to apply for processing. They also introduced intake caps on new applications. A maximum of 1,000 applications per specified occupation would be processed, and an overall cap of 20,000 was imposed on new FSW applications during the 1 July 2010 – 30 June 2011 processing year.
MI-2 部长2号指令的情况。

4.   On June 27, 2011, a third set of Ministerial Instructions (“MI-3”) were issued. These instructions further reduced intake of new FSW applications, introducing an overall annual cap of 10,000 new applications, with sub-caps of 500 applications per eligible occupation. The list of eligible occupations introduced in MI-2 was not changed.  
MI-3 部长3号指令的情况。

5.   Applicants who have applied under the list of eligible occupations introduced under MI-2 have highest processing priority, followed by those individuals who have applied under MI-1.  Applications submitted prior to the enactment of Bill C-50 continue to be processed, albeit with lesser priority.  
MI-2 有最高优先级，MI-1 次之， Bill C-50 前的案子会继续审理，优先级最低。

lamjin

B.   TWO CATEGORIES OF LITIGANTS  两类诉讼

6.   This mandamus litigation concerns two categories of FSW visa applicants: those who applied before 27 February 2008, i.e., pre-Bill C-50 (“Class I”), and those who applied between 27 February 2008 and 25 June 2010, i.e. MI-1 applicants (“Class II”). Of the first 560 litigants, 76% are Class I applicants and 24% are Class II applicants.

寻求法庭强制令两类诉讼：
2008年2月27之前 ，例如 pre-Bill C-50, 叫Class I;
2008年2月27 - 2010年6月25前的，例如 MI-1的，是Class II。
在所有头560个诉讼人中， 76%是class I, 24%是 class II.

lamjin

C.   COMMON ISSUES  共同争议的问题

7.   The Applicants are applying for mandamus on the basis that their FSW applications remain outstanding. 申请人正在申请法院强制令，来要求他们的案子被处理。

8.   For the Class I contingent, the Applicants are challenging the Minister's departure from the processing practice that was in place when they applied.  That practice was generally on a first-in-first-out (FIFO) per visa post processing policy, with exceptions and variations for file specific reasons.


对于class I，申请人控告部长没按先进先出来处理。


9.   For the Class II litigants, the Applicants allege that the Minister represented that their applications under MI-1 would be processed within one year.  They also take issue with the decision to accord higher priority to the processing of applications received after 26 June 2010.


对class II， 申请要求他们的案子要在1年处理。 而且对优先处理2010年2月26后才申请的案子表示不满。




10.   The Minister's position in both cases is that Ministerial Instructions, authorized by Bill C-50, are a legally valid approach to processing FSW applications and that the preconditions for the issuance of mandamus have not been met.


部长的观点是， 部长指令是有C50授权，是法律授予的有效处理案子办法。 而且要求法庭授予强制令的前提条件不满足。

lamjin

D.   REPRESENTATIVE CASES 代表案子

11.   Both parties agree that proceeding by way of representative cases would be the most efficient method of determining the common issues.
双方都同意，用代表案例的方法是处理上述争议问题的最有效的办法。

12.   There will be two representative cases – one from each of the two classes listed above.  The Applicants will choose a representative case from each class. 每个类别选一个代表案例。

13.   If the Court disposes of the representative cases on the basis of the Ministerial Instructions, the Applicants agree that this would therefore result in all the applications being dismissed. Accordingly, the other Applicants will discontinue their applications should the Federal Court's decision not be appealed to the Federal Court of Appeal.

如果法庭是基于部长指令的内容来处理代表案例， 那么所有申请人都同意，因此将导致所有向法庭申请案将不被受理。相应的，除非联邦法庭的裁决被上诉至联邦上诉法院，其他申请人将不再向联邦法庭提申请诉求。

14.   If the Respondent's arguments fail, the Respondent will be guided by the decisions in the representative cases, subject to appeal rights being exhausted, on the possible disposition of the remaining cases held in abeyance.

如果被告的辩解失败，受到上诉受限，被告将受代表案例法庭裁决的指导， 来处理剩余的案子。

（注： 13 ，14条大概是大忽悠们认为最关键的两条了吧！如何guided 没有定义，没有解释，双方可以有不同理解。）

lamjin

E.   TIMELINE FOR PERFECTION OF APPLICATIONS  时间框架。

15.   The timeline set out in the Federal Courts Immigration and Refugee Protection Rules (the “Rules”) will be followed, that is, the Applicants will have 30 days from the date of the transmission of the Certified Tribunal Records to serve and file their application records in the two representative cases.  The Respondent will have 30 days from the date of service of the Applicants' application records to file his memorandum of argument and supporting affidavit(s).
16.   Should the Court grant leave, the procedures mandated by the Rules shall be followed, except that the time for service and filing of the Applicants' further memorandum of argument, if any, shall, if cross-examinations occur, be 15 days from the date of production of the transcript(s).  The time for service and filing of the Respondent's further memorandum of argument shall be 15 days following service of the Applicants' memorandum of argument.

17.   Pending the outcome of the representative cases, all other related cases shall be held in abeyance, along with any new applications for leave and judicial review subsequently filed and brought to the attention of the Case Management Judge.  The Respondent shall continue to be relieved of the requirement to file a Notice of Appearance in any new leave application filed.

bondy

lamjin是移民专家阿

lamjin

那么 CIC 是如何理解的 guided 的呢？

就是对那670人中， 3月 29前SD 的申请， 继续处理， 这个是35人。  剩下的635人， 6月29以后，按照C38 被终止。 这个做法，既满足614判决，也能满足二月协议，还能满足C38法案。为什么可以这么说呢？ 614判决中梁的案子，是在329之前已经有了SD的，cic 就会根据这个标准(guided by ),  从670人中，一个一个（case by  case) 的选出符合这个代表案例的案子，也就是35人来处理。 剩下的635人就被C38切掉了。

lamjin

这里律师选的代表案例有很大问题。要么是水平问题， 要么就是留有后手，衍生出诉讼，让更多人加入。在614的判决中可以看出， 那个印度的代表案例，法官直接是不予受理。 而梁的案子却只是代表少数人。