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| | C&C寰球给加拿大新任移民部长,加拿大前总理和国会议员的信(二)
| 2002-02-27 16:49:52 来源 : 加拿大C&C寰球资讯 |
Denis Coderre
Minister of Citizenship and Immigration
February 19, 2002
Dear Mr. Coderre,
In our previous letter concerning the aspect of retroactivity of the proposed Immigration and Refugee Protection Regulations we outlined concerns from our perspective. In addition to our points of view presented in our previous letter, we think it is now necessary to further analyze the benefits/disadvantages of retroactivity, especially in light of the presentation given by Mark Davidson to an audience at the Royal York last week during which he defended the policy of retroactivity. We also noted that you have agreed to listen to criticism and suggestions in order to ensure the new regulations are
broadly accepted and fair.
The new regulations are comprehensive, but what we will discuss here is
particularly the impact of said regulations on the Independent Skilled Worker program.
I. It is too risky to use the untested and rough selection model laced with retroactivity to replace a tried and true model
The Canadian Government should be clear in their objectives or their
anticipated results before implementing the retroactivity clause of the new regulations. To do otherwise would not be rational. A comparison analysis is necessary. Of course, if a better system can be developed to replace or enhance an old system, it should beneficial to all concerned. Periodically upgrading old regulations to adapt to changing situations is normal and even essential. We have no objection to this. However, we cannot see any substantial analysis that has been undertaken for the implementation in terms of advantages and disadvantages. We would like to see such an analysis undertaken by CIC, and based on this our comments may be more specific.
The current regulations do need to be upgraded. There are definite shortcomings. To our understanding, the most significant change should be to replace the occupation-based selection to establish a human capital based selection. Upgrading or enhancing the current system in this way does not necessitate the need to immediately invalidate, eliminate, or destroy the main body of the current regulations. The current system has been in use for many years and it has been tested, and proven to be successful, mature and practical.
Given the fact that the old system is not ideal, a gradual change is more suited rather than sweeping changes. Even a brief look at the new regulations makes it evident that while some of the weaknesses have been removed, many new potential problems have surfaced. In light of this, it is difficult to see in what respect the proposed new regulations are superior to the current regulations. The new
regulations need to be enhanced and tested in trial implementation so that we can ensure the outcome is a solid selection model. The most recent change in May 1997 is one example of adapting the regulations to reflect current realities while allowing for an adjustment period during the course of its implementation.
The criteria in the new regulations are still debatable. Certainly they will not meet the anticipated needs of Canadian business searching for highly skilled employees (engineers, scientists and IT professionals to name but three) in the coming years according to information provided by the Government of Canada and currently available on the HRDC website.
Our conclusion: It is too risky to use retroactivity of the new regulation to immediately replace the current model.
II. Retroactivity is the Wrong Tool to use upon the Old Applications
Applications made under the current system generally tried to meet the criteria that now exists because when applicant’s made their applications, they completed a self-evaluation in light of the criteria in order to contemplate their chances of achieving 70 points.
If in the future the new regulations are implemented, the type of successful applicants will be dramatically altered in order to satisfy the new criteria.
One of the main changes is the eligibility of certain new occupations, occupations that under the old system are virtually closed. If we say that the new model may allow professionals in a certain number of new occupations to come to Canada, the retroactivity in assessing the old applications will show no advantage to allow the people in these new occupations because there are few such applicants in the current backlog. No benefit can be gained should this be the ultimate objective.
It makes little sense to retroactively implement the new regulations on the old applicants.
Our conclusion: It is proper and logical to use the old system to evaluate the old applications, and use the new system to evaluate new applications.
III. Retroactive Assessment Will Have Many Negative Side-effects
It is said that if the new system is implemented while lowering the pass mark it will no longer reject the vast majority of applicants in the backlog, the thinking that such a move would render the issue of retroactivity meaningless.
We do not think so.
Although the pass mark may indeed be lowered, it remains unacceptable to use it retroactively. Under either the current or new system, there will be a certain number of applications refused. Likewise, regardless of the system used, no one will object if they pass and receive a visa. However, if an applicant is refused using retroactivity, regardless of the reason, they will have strong objections and blame the retroactive aspect. Retroactivity could be one target or one reason for them to go to court. If CIC agrees to provide them with a refund, the refund itself is an admission that actions taken by CIC were wrong. In this way, CIC seems to invite problems. From the CIC’s position, we think it is not wise to implement the retroactivity clause.
If the current system is used to evaluate existing applications, although a certain percentage will still be refused, it will be regarded as normal – few may appeal, but no mass surge of court appeals. The application fee will still be kept in the government coffers, but no one will use this as an excuse.
Furthermore, the length of time to process applications currently in backlog can be accelerated through measures other than the introduction of retroactive criteria. The existence of two systems working side by side would not be a unique situation, the most relevant example being the introduction of the NOC in 1997.
Technically speaking, there were retroactive assessments before. However, this happened only if the new regulations were favorable to the applicants. There seems to be a taboo for any established legal system to use retroactivity to the detriment of those affected. Why then is Canada pursuing this course of action?
We believe it is pointless to try and save time to clear up backlog by using retroactivity. Time may be saved in this way but will be expended in other areas to deal with many repercussions and side effects of the proposed new regulations.
Our conclusion: The implementation of the new regulations with retroactivity will cause negative results even if the passing mark is lowered. Without clear advantages to use the new regulations retroactively, it is wise and safe to use the current regulations to deal with the backlog.
Sincerely,
Frank Meng Dwight D. McWethy
Licensed member AICCLicensed member AICC
Encl:
1)Discussion about the retroactivity of new regulations
2)Proposal for amending the new regulations
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