The Quebec government has wide discretionary powers to issue selection certificates to foreign nationals seeking to settle permanently in the province, according to two rulings issued concurrently in related matters by the Quebec Court of Appeal.
Indeed, the Court points out that under the Act respecting immigration to Québec (the Act), the Quebec Minister of Immigration and Cultural Communities can issue selection certificates to applicants who do not satisfy conditions and selection of criteria established by government policy, or refuse applicants who meet the conditions.
According to Éric Dufour, counsel for the Quebec government, the Court of Appeal clearly states that the aim of the Act is to establish a framework and guidelines that lead to the selection of applicants who can contribute and integrate into Quebec society.
“It is normal then for the Minister to have wide discretionary powers and endow himself with regulations that will help him measure the degree to which an applicant will be able to integrate in Quebec,” said Dufour, who successfully plead the Chazi c. Québec (Procureur général) 2008 QCCA 1703.
In Chazi a Moroccan couple’s application was refused because the Quebec Ministry of Immigration and Cultural Affairs refused to acknowledge the professional expertise the applicants acquired while working under the table in their native country.
Under regulations established by the Act, a foreign national who wishes to settle permanently in Quebec must belong either to a class of foreign nationals who are in a particularly distressful situation, a family class or economic class. Applicants, such as in Chazi, filing under the economic class are subject to an evaluation based on criteria such as training, work experience, and knowledge of French and English.
The appellants argued that the Minister overstepped his authority by issuing a directive that did not recognize expertise acquired in the underground economy.
The Court of Appeal ruled that the directive is not a normative instrument and consequently the appeal to annul the directive is inadmissible. It added, however, that the Minister is free to determine what evidence is admissible to establish the experience of foreign nationals seeking permanent residency in the province.
“I am sensitive to the pleading made by the appellant’s lawyer who insists that distinctions have to be made by Western nations and certain developing countries, particularly when it comes to the precariousness of employment” in developing nations, wrote Justice Forget. “Nevertheless, it remains that it is a political decision.”
The other case also involved a Moroccan couple. They filed their applications in September 2001, and were rejected a year later even though they fulfilled the employment requirements when they submitted their applications. They were rebuffed because new employments were established by the Minister between the time they submitted their application and the time it was examined.
The appellants argued that the ministry’s decision should be overturned because they acquired a right to immigrate from the moment they filed their applications, basing their arguments on four rulings made by the Federal Court of Canada between 1986 and 1997.
The Court of Appeal rejected their arguments, pointing out, among other things, that the Federal Court rulings were issued at a time when deference to administrative organizations was not as high as today.
Informed by several rulings issued by the Supreme Court of Canada, the appellate court also flatly stated that foreign nationals seeking to settle permanently in Quebec do not have a “right to immigrate” the moment they file an application for a selection certificate.
“Immigration is not a right, but a privilege,” wrote Justice André Forget in the ruling Goumbarak c. Québec (Procureur général) 2008 QCCA 1701, a finding he makes in the Chazi ruling, which was released on the same day.
“The examination of their applications had as an objective to confer them a right to immigration and not confirm a right they manifestly do not have. At most they had the right that their application be examined, following the rules of procedural fairness” as they paid the necessary amount required by the regulations of the Act.
Affirming a lower-court ruling, the appellate court also found that accepting an application from a foreign national who practises a profession that no longer meets the employment requirements would lead to absurd outcomes.
“The Ministry is seeking foreign applicants who can hold jobs in demand in Quebec,” said Justice Forget. “It is therefore logical that it ensures that these jobs are still available while their applications for selection certificates are under examination.”