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Mr. Denis Coderre
Citizenship and Immigration Canada
Jean Edmonds Tower South
365 Laurier Avenue West
Ottawa, Ontario
K1A 1L1
Canada

Re: Immigration and Refugee Protection Regulations, published in Canada Gazette,Part 1, December 15, 2001 - Retroactivity

Dear Mr. Coderre,

The new proposed Immigration and Refugee Protection Regulations published inthe Canada Gazette on December 15, 2001 have several serious flaws that we believemust be addressed prior to their implementation. We have more fully elaboratedthe flaws of the new regulations (especially regarding the skilled worker class)in a separate letter. We are now only addressing the issue of retroactivityof these new regulations, which we believe to have fundamental problems. Wehave strong objections to the retroactivity aspect of the new regulations andhave laid out our reasoning below:

Retroactivity of the new regulations reflects a lack of justice

This decision made in no way represents Canadian values of fair play.

First of all, the retroactivity of the new regulations does not reflect theactions of a just society. They would never have even been contemplated hadCanadians been targets of these regulations. Mass civil disobedience and courtaction would have resulted. Regulations of this type usually incorporate a GrandfatherClause, and it is not understandable why the Canadian Government has chosento ignore precedent, other than to eliminate the system wide backlog by thismost unacceptable method.

Despite the fact that several government officials have stated that applicationfees would be refundable if applicants were rejected due to the retroactivityof the new regulations, this retroactive action is still not acceptable.

The proposed pass mark of 75 points for those applications received beforeDecember 17, 2001 can, in no way, be considered equivalent to the old pass markof 70. How does the Canadian Government explain to an applicant who has beenwaiting patiently in a queue for two years that suddenly he is to be evaluatedagainst a different set of criteria? It is certainly not the fault of the applicantthat he has had to wait so long, that fault lies clearly at the feet of theCanadian Government, yet it is the applicant who is paying the price with theonly option for recourse a long drawn-out legal battle that is certain to occurif and when these regulations come into force. The price he pays is not onlythe application fees for himself and his family, but also failing to achievethe newly required 75 points under the new system, which will cause him to sacrificehis dream of living in Canada.

People take time and effort to make an immigration application to Canada, puttingtheir faith in the expectation that their application will be fairly assessed.It is simply crude to give applicants false expectations with no intention ofever living up to your promises. Yet this is precisely what these new proposedregulations will mean.

The Canadian Government wants to revamp its Immigration Regulations, it certainlyis within their domain of responsibility, but not on the backs of people whowhere blind to criteria they had never had the chance to measure themselvesagainst. If given the opportunity to evaluate themselves against these new criteriabefore applying, how many would have actually done so? Almost certainly onlya small fraction of those who actually did.

The immigration application processing time fluctuates considerably and theindividual case processing time depends on the work efficiency of individualimmigration officers. An applicant may wait three months or for three yearsfor a conclusion, but it is not the fault of applicants. How is it possiblethat if this person had an interview last week he would have passed with flyingcolors; yet six months from now he will fall well short of the pass mark? Ifthe Canadian Government were able to complete the assessment in a comparativelyshort time, the issue of retroactivity would be a moot point. CIC cannot transferits burden to innocent applicants, rather responsibility needs to be taken andapplicants need to be dealt with in a respectful manner.

Lack of integrity & consistency in the decision making process

At end of last October, Minister Caplan announced that in 2002, Canada wouldwelcome 10,000 more new immigrants than in previous years (NB: the number hadremained static for several years previously) and on many occasions, she repeatedthe Government's position that Canada would accept more immigrants, up to onepercent of the whole population of Canada, as the ultimate immigration goalin the long run. Yet the new regulations use the retroactivity tool of the morestringent regulations to reject a majority of the applicants who have been waitingfor months and even years. If the new regulations are implemented as announced,the annual immigration plan cannot possibly be met. This is a self-contradictionin the decision-making mechanism.

We should make clear the purpose and the outcome that will result should thesenew regulations be imposed retroactively. Anything less will be seen as a methodto instantly dissolve the tremendous backlog at numerous Canadian Embassiesabroad. As demonstrated below, we can see no advantage to refuse applicantsin the backlog queue by applying these newly published regulations retroactively.It will only damage Canadian national interests in the long run.

Let us look at a typical example of an applicant from China.

Statistics: Bachelor degree in Electrical/Civil/Chemical Engineering; 30 yearsold; 6 years R&D work experience in a multinational company; good Englishskills; and spouse has a bachelor degree.

Old system: £ £ £ £ £ £ £ £ £ £ £ £ £ £ New system:
Age: 10 £ £ £ £ £ £ £ £ £ £ £ £ £ £ £ £ Age: 10
Education: 15 £ £ £ £ £ £ £ £ £ £ £ £ £ Education: 20
Occupational Factor: 5£ £ £ £ £ £ £ £ £ Experience: 25
ETF: 17 £ £ £ £ £ £ £ £ £ £ £ £ £ £ £ £ Language: 10
Work experience: 8£ £ £ £ £ £ £ £ £ £ £ Adaptability: 4
Language: 6
Demographic Factor: 8
Suitability: 6
Total: 75 £ £ £ £ £ £ £ £ £ £ £ £ £ £ £ Total: 69
(Passing points: 70)£ £ £ £ £ £ £ £ £ £ (Passing points: 75 or 80)
Result: Pass£ £ £ £ £ £ £ £ £ £ £ £ £ £ Result: Fail

If we were to substitute an applicant with a PhD, several years of work experience,good English skills, and 35 years old, if he cannot achieve the maximum pointsfor each and every factor, he would still fail to earn the necessary 75 points,let alone 80 points. The new proposed model is far more stringent than the oldmodel; it is difficult to understand what kind of people Canada is now hopingwill immigrate.

Canadian companies continue to bemoan the shortage of highly skilled professionalsand these regulations will only serve to exacerbate their problems

Obviously, adjustments to the criteria of the immigration regulations needto be made in order to better reflect the realities of the world today and toselect better immigrants. That is the foundation that the new regulations shouldform. Although there are shortcomings to some degree in the current regulations,the main contents have proven valuable throughout their history. It is not ourintention to reject changes to the current regulations, but it would be irrationalto completely destroy the old system (application backlog) by this extreme method.Even with the new regulations, Canada cannot be guaranteed that the best candidateswill be selected. Even a so-called perfect candidate will require improvementsin order to pass.

The most rational method is to use the old system to process the backlog, whileusing the new regulations (after a revising the point selection grid) for newapplicants. This approach will prevent us from making serious mistakes and damagingCanada's reputation in the world.

We care about the image of Canada in the world

People consider many factors when they make the decision to immigrate to Canada.One factor they consider is Canada's respect for fairness, which is part ofour social values and principles. Can we as a country imagine destroying suchmoral standards to simply facilitate solving a particular problem? Does Canadacare about how it is perceived by the world? Many of the recent articles inthe media would suggest they do. These new proposed regulations do not representthe qualities that the vast majority of Canadians treasure. Instead they areunderhanded and manipulative and bring out the worst images of our country.

In the past, Canada has a very good image and reputation in the world becauseof its forthright nature in dealing with international affairs. For example,in China, most people remember Doctor Bethune, a Canadian volunteer helpingthe Chinese during World War Two, while most Canadians do not know his name.To maintain a positive image is not easy, but to damage it needs only one actionmade in haste, even though it may not been viewed as such from within Canada,those outside our boarders will have a different view based on our actions inthe past. Canada will be seen as wanting to raise the bar so high as to allowonly a very select few to pass, while still publicly stating that Canada welcomesnewcomers. Most importantly, Canada will be seen to lose its credibility.

As Canadian representatives in a foreign land we are on the front line andhave face-to-face daily contact with applicants who are not shy to share theirfeelings with us. We are not shielded to the harsh reality sitting back in Ottawaor even behind the gates at the Canadian Embassy. Our fingers are on the pulseof a nation and what it tells us is not pleasant. If Canada wants to continueto be held in high regard, it must produce regulations that are in keeping withour long history of accepting qualified immigrants to our shores who can demonstratethey can contribute to the continued success of Canada.

Nearly all those applicants who are 'locked in' face the same danger and willregard the actions of the Canadian Government as a way to cheat them out oftheir future in Canada.

Given the fact that the Canadian Government is changing the rules literallyyears after many applications were made, how else can this action be viewed?How will the Government respond to this criticism?

There is potential risk that CIC will face a legal battle

Many lawyers have pointed out that the implementation of the retroactive regulationsmay cause numerous lawsuits. The action taken will cause direct and indirectharm to the applicants. When Canadian Government announced and distributed itsdetailed criteria to attract potential immigrants, the Canadian Government gavethem an offer. When they responded to your offer, you may or may not acceptthe offer. The fact is that the Government of Canada did accept their offer.From this point in time forward, the Canadian Government had a commitment tothis, a responsibility. If afterwards the Government wants to modify the termsunder which the original offer was made, they breach the agreement. All thatconstituents an agreement is present.

A breach of contract is a legal determination yet to be made, all that canbe certain of at this point in time is that the Canadian Government faces aloss of credibility - a true shame. Future lawsuits cannot possibly be worthwhilefor Canadian Government to counter, regardless whether the Government will winor lose.

There are better solutions to solve the existing backlog

Four years ago an applicant would not have worried about changes to the immigrationregulations, because he could point to the last time there was a change, May1997, and know that applications received before this date were locked in underthe old system. He was protected; he was secure in the knowledge that he wouldreceive an evaluation based on criteria he was comfortable and familiar with.Now introduced is the easiest and most careless strategy to rid the Governmentof the backlog. Suddenly, in the space of a day, his confidence is shatteredand his future is in serious doubt.

There must be a method to allow for applicants currently within the applicationprocess to be evaluated on a basis consistent with the criteria they consideredwhen they made their application.

We have outlined below some of our proposed solutions to the backlog that CICnow faces, one that will not see the wholesale refusal of immigrants that Canadaneeds. Two of the posts with the heaviest backlog are Beijing and Hong Kong,posts that we have been working with for more than 6 years. Numerous changeshave occurred in those 6 years and we feel that we are in a particularly uniqueposition to offer several suggestions to improve processing.

One of the most burdensome responsibilities for immigration officers is testingthe language ability of candidates during an interview. Both Beijing and HongKong have been using the International English Language Testing System (IELTS)for some time to evaluate the English ability of potential immigrants. Thistest has thus far been voluntary. However, if it were to become compulsory,these posts would have to schedule interviews for far fewer applicants. Applicantsunable to attain enough points could then be issued letters of refusal withCIC secure in the knowledge that these applicants really were unsuited to lifein Canada. If an interview was still required for quality control purposes,the length of time required should be considerably shorter, thus increasingthe processing efficiency.

The Canadian Embassy in Beijing has physically run out of space. An annex builttwo years ago is full to capacity. Given the huge backlog, it would make sense,on a temporary basis, to appoint temporary duty officers to other Canadian consulatesin China to carry out interviews, thus allowing seasoned officers to make determinationson paper files, using their knowledge of the Chinese situation. Permanentlytransferring responsibility to other Canadian consulates in China for differenttypes of visa applications would allow for the appointment of more visa officersin Beijing to help bring the backlog under control. The Canadian Embassy inBeijing has acknowledged that they routinely shift resources from one type ofvisa processing to another. This type of situation benefits only the studentand family sponsorship applications, but does nothing to alleviate the backlogof independent or business applicants. Quite simply, more officers are neededto help eliminate this backlog.

Every fall CIC releases its targets for the upcoming year. The current backlogshould be taken into account and posts able to process files and issue visasshould not be held back simply because they may exceed their yearly target.As a matter of fact, in 1998 and 1999 immigration levels failed to meet thelow target range established by CIC.

Our standpoint

After the new regulations were published, we, along with other practitioners,wrote a number of letters or reports to provide suggestions to provide a correctorientation to the new regulations for the near future for CIC. Nevertheless,several politicians made comments that demonstrated their bias. Their pre-dispositioncaused them draw a conclusion that suggestions from immigration lawyers andconsultants were not credible because they were made purely out of self-interest.What logic! Everybody has self-interest in a decision making process, politiciansare not exempt from this either as we well know. Altruistic intentions are admirable,but rarely, if ever, exist in the real world. Who does not have self-interest?If we want the people without any self-interest to run the country, we may dismissthe parliament. The point is whether the suggestions are reasonable and valuable.As practitioners, we deal with the applicants and the processing posts, we careabout the regulations which govern the way we operate, the CIC's mechanism andits performance. As the people who are in frontline, we are in a position tooffer our insight that other people are not in a position to observe firsthand.As a matter of fact, while we care about our self-interest, we try to providesuggestions in consideration of justice, Canadian national interest, the reputationof Canada, and to facilitate the Canadian Government's operation.

Conclusion

We think it is imperative for the Government of Canada to consider the abovementioned implications of making rash decisions when determining the most suitablemethods to fairly process the 170,000 applications currently in processing backlog,especially considering the long-term reputation of Canada on the world stagebefore making these proposed Immigrations Regulations retroactive. If the Governmentfeels there is no other option than full retroactivity, then a review of thenew pass mark so as to make it equivalent to the current passing mark wouldbe necessary (although not a very good solution, much preferable to the fartoo bold retroactive strategy). The Canadian Government should take the leadby acting openly, responsibly and compassionately towards people whose onlydesire is to join and contribute to our country and way of life.

Sincerely,

Frank Meng£ £ £ £ £ £ £ £ £ £ £ Dwight D. McWethy
Chief Representative£ £ £ £ £ £ Senior Consultant
Licensed Member AICC£ £ £ £ £ £ Licensed Member AICC

CC:
Alain Theault, Director General, Legislative Review and Implementation Branch,CIC,
Mark Davidson, Director, Economic Policy and Programs, Selection Branch, CIC,
and many Members of Parliament