Articles

Article Regarding Revised Passmark

The new Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA) received Royal Assent on November 1, 2001 . Immigration Regulations were prepublished on December 15, 2001 and March 9, 2002 . The New IRPA and Regulations came into force on June 28, 2002 .

At the time of the proclamation of the New Act and Regulations, there was a significant backlog of applicants. The Government of Canada sought to deal with the backlog problems in the following manner:

• extending the time in which these applications could be processed under the former selection grid from June 28, 2002 to March 31, 2003 .
• processing these applications under a lower passmark (70 instead of 75)
• offering a refund of processing fees to those who had not received a selection decision.

Some of the applicants did not believe that the transition rules treated them fairly and as a result took the Government of Canada to court. In February 2003, the Federal Court ordered that the applications of those involved in the lawsuit who had applied before January 1, 2002 be assessed under the former Act before March 31, 2003 . CIC complied with that order.

For those who submitted their applications after January 1, 2002 , the judge felt that they had been aware at the time they filed their applications that they would be processed under IRPA and that there was therefore no unfairness.

Following the Courts decision, many other people felt that their applications should also be reviewed. In June 2003, a Federal Court judge imposed an injunction on the Immigration Department to prevent it from finally refusing any application, which was filed prior to January 1, 2002 . This injunction also required the department to notify all applicants that could potentially be involved in a class action. CIC is in the process of complying with this injunction.

The courts have determined that, while they are legal, the transition provisions between the Immigration Act and IRPA are not as fair to applicants who applied before January 1, 2002 as the government had believed. The government was forced to propose to amend the transition regulations to allow economic class applicants (skilled workers and business immigrants) who filed their applications for permanent residence before January 1, 2002 to be assessed under the former Immigration Act (and then under IRPA if refused under the former Act). These Regulations were announced on October 9, 2003 .

These proposed amendments would meet the applicants' request to be processed under the selection criteria in place at the time they filed their applications and also give them the benefit of an assessment under IRPA.

The Immigration Department also proposed to offer the same processing to:

• those people who had applied prior to January 01, 2002 and who were refused between the coming into force of the new selection grid on March 31, 2003 and June 20, 2003 ; and
• those who withdrew their applications between January 01, 2002 and the coming into force of these proposed regulatory amendments.

Applicants in these last two groups would be required to advise the Immigration Department of their desire to be processed before January 01, 2005 . They would be required to comply with Regulation s 10 and 11 in respect to the contents of their applications and the location where the application would be filed. They would not have the right to apply at the Canadian Mission where there original application had been filed but rather be required to submit the application at the Mission where they have legally resided for at least a year or the Mission in their home country. This would be a setback if the Mission in their home country were experiencing a serious backlog. Secondly, the Regulations do not save the place in the queue for the Applicants at the point where they were refused or had withdrawn.

There is no relief offered to those applicants who applied to immigrate to Canada between January 1, 2002 and the coming into force of IRPA. These applicants were aware, at the time they filed their applications, that they would be processed under IRPA. The courts have not disagreed with the department's interpretation of the transition rules as they apply to this group.

In the new selection system the pass mark is the primary tool to balance the qualifications and quantity of Federal Skilled Worker immigrants. The Minister set the Federal Skilled Worker pass mark at 75 points when the new selection system came into effect on June 28, 2002 .

On September 18, 2003 , the Minister amended the pass mark for new skilled worker applicants to 67. The pass mark for skilled worker applicants currently in the system who have not yet received a selection decision would be 70 points under the old criteria and 67 under the new one. The Applicant would receive the benefit of the criteria that was best for him or her.

Under the old criteria the self employed applicant had to obtain 70 points. The investor and entrepreneur had to obtain 25 points. Under the new selection criteria, the self-employed, investor and entrepreneur applicants would have to obtain 35 points and meet the other criteria set out in the New Act and Regulations.

It is important to note that the criteria that determine how points are awarded have not been changed. Selection will depend on the awarding of points for age, language ability in English and French, education, experience, arranged employment and adaptability. The transitional provisions were supposed to come into force on October 31, 2003 but to the writer's knowledge, they have not yet been proclaimed.

Andrew Z. Wlodyka obtained his law degree from the University of British Columbia . He was called to the Bar of British Columbia in 1978, Mr. Wlodyka is associate counsel with the Vancouver Law firm of Lowe & Company in the practice of Immigration Law. He was a member of the Immigration Appeal Board from 1986 to 1988. Mr. Wlodyka was Assistant Deputy Chair of the Immigration Appeal Division, Immigration and Refugee Board from 1989 to 1993. He is the Past Chair of the Immigration Section, Canadian Bar Association, B.C. Branch. He presently serves as Member at Large representing British Columbia in the National Immigration Section of the Canadian Bar Association. He has written articles and papers in the area of Immigration Law and his most recent publication "Appeals before the Immigration Appeal Division" was published by Carswell in 1996.