Date: 20060929
Docket: IMM-7109-05
Citation: 2006 FC 1159
Ottawa, Ontario, September 29, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
HOMAYOUN VAZIRI
HASSAN VAZIRI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Homayoun
Vaziri, a Canadian citizen, wishes to bring his father, Mr. Hassan Vaziri, to Canada as a
permanent resident. Although he commenced the two-part process (described
below) in August 2003, no decision has yet been made as to whether the father
will be issued a permanent resident visa as a sponsored member of the family
class. The father and son, jointly, have applied to this Court for an order of mandamus
requiring the Minister of Citizenship and Immigration (the Minister) to render
a decision on the father’s sponsored application for permanent residence.
[2] The
problems presented by this application begin with the three classes of
immigrants set out in s. 12 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) – family class, economic
class and refugee class. The Applicants assert that consideration of their
applications was severely and negatively impacted beginning in 2001 or 2002
when the Minister, acting administratively, established target levels for
immigration to Canada that incorporated a 60:40 ratio between the economic and
non-economic classes. The problem for the Applicants worsened when, in 2003,
the Minister placed further restrictions on the processing of applications for parents
and grandparents by giving priority to spouses and dependent children within
the family class. The effect was that sponsorship applications for parents and
grandparents have been processed at much slower rates. Indeed, from May 2004 to
April 2005, visa officers were under instructions to suspend the processing of
parent and grandparent sponsorship applications.
[3] The
Applicants submit that the Minister has no legal authority to establish the
targets or to put into place a process that seriously detracts from the rights
of parents and grandparents to become sponsored permanent residents, unless
authorized by regulation made under s. 14(2) of IRPA. There are no such
regulations.
[4] The
Applicants in this application are typical of a certain category of family
class applicants none of whom are spouses or dependant children of the sponsors
and most of whom are – as here - parents or grandparents of their sponsors. A
number of similar applications for judicial review have been brought to the
Court with the intention that these cases could form the basis of an
application for conversion to an action and certification as a class action.
The parties agreed that this and one other application (Gorbatyuk et al v.
Canada (Minister of Citizenship and Immigration), Court File No.
IMM-7333-05) would be dealt with as test cases for the issues raised.
Issues
[5] I would frame
the issues as follows:
- In the absence of
regulations enacted under s. 14(2) of IRPA, does the Minister act
without authority in setting targets for visa approvals by class and
establishing procedures that prioritize sponsored applications within the
family class?
- Have
the Applicants met the test for mandamus?
[6] Although
the analysis focuses on the Applicants, the issues raised and my conclusions
will have application to the larger group of parents and grandparents waiting
for sponsored permanent residence in Canada.
[7] In
the analysis of these issues, I will begin with a discussion of the sponsorship
process in general and for these Applicants. In doing so, I will set out the
legal framework and the historical context that has given rise to the policies
and procedures that are the subject of this application. A discussion of each
of the issues follows.
CIC Processing of
Sponsored Applications
[8] The
process to become a permanent resident based on a sponsored application
involves two steps:
- The sponsor must
submit a sponsorship application (IRPA, s. 13(1); Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations),
s. 130). These applications are processed at CIC’s Case Processing Centre
in Mississauga
(CPC-M).
- If the sponsor is
approved, the individual seeking to come to Canada must
submit an application for permanent residence (IRPA, s. 12; Regulations,
s. 10(4)). The PR applications are processed at overseas visa offices. In
the case of Mr. Vaziri, visa officers in Damascus are
responsible for the assessment.
[9] Mr.
Homayoun Vaziri submitted a sponsorship application and fee on August 21, 2003.
For some time, he received no response. In correspondence dated May 27, 2004,
from CIC to Mr. Homayoun Vaziri, the delay was explained as follows:
Demand to immigrate to Canada continues to rise. At this
time, with immigrant application intake exceeding the planned immigration
landings and our operational capacity, working within available resources often
means making some difficult choices. While these choices may lead to increased
inventories and longer processing times, they are decisions that must be made
in order to maintain a balanced and sustainable immigration program.
To meet the government’s stated
commitment to spouses, partners and dependent children while keeping economic
immigrant landings as close as possible to our target, Citizenship and
Immigration Canada has made those difficult decisions. At this time, we have
unprecedented demand in the family class program and some components of this
class will experience growing processing times, particularly for parents and
grandparents.
Other evidence presented in this hearing
corroborates this explanation for the delay.
[10] Further
information on the record before me shows that CIC attempts to coordinate the
timing of sponsorship approvals with expected time requirements at the overseas
visa offices. That is, CPC-M will delay processing a sponsorship application to
reduce subsequent delay at overseas visa offices. From May 2004 to April 2005,
CPC-M temporarily paused the processing of sponsorship due to the reduced
targets for sponsored parents and grandparents coupled with government policy
to give higher priority to spouses and dependent children. As explained by Mr.
David Manicom, Director, Operational Coordination, International Region, CIC,
in his affidavit:
The rationale [for the pause] was: since
visa officers already had existing inventories on hand more than sufficient to
do the processing necessary to meet the target range for 2004, there was no
benefit to potential sponsored immigrants in this class in approving additional
sponsorships in Canada at that time. Processing further sponsorships would
simply have moved the inventory of cases from one location to another and CPC-M
was better equipped to centrally handle the inventory, compared to the
individual visa offices worldwide.
Mr. Homayoun Vaziri’s sponsorship
application was caught in this temporary pause.
[11] In
October 2005, the sponsorship application was finally approved. With
sponsorship approval in hand, Mr. Hassan Vaziri submitted his application for
permanent residence (PR) on January 22, 2006. Although the Applicants believe
that the PR application will take three years, Mr. Manicom states that his
belief is that Mr. Vaziri’s father’s application will “most likely be finalized
in early 2007”.
Lawfulness of Minister’s
Actions
Overview
[12] Each year, Canada receives
sponsored PR applications numbering well into the hundreds of thousands. Each
year, the Minister, in an annual report to Parliament (which Report is required
pursuant to s. 94 of IRPA), identifies target ranges for the overall total
number of PR applications to be accepted in the coming year and breaks down
that range by categories. By way of example, the current Report sets out a
range of 17,000 to 19,000 for the category of parents and grandparents in 2006.
Also set out in the Report is the planned ratio of economic to non-economic
immigrants (56:44 for 2006). These targets reflect policy decisions of the
Minister. In turn, these policy decisions are supported by operational
decisions by the Minister (and carried out by CIC officials such as Mr.
Manicom) whereby CIC manages its operations in such a way as to meet the target
ranges. These are the decisions that the Applicants argue are not being
lawfully made by the Minister and his delegates.
Statutory
Authority
[13] I will begin
by reviewing the relevant statutory authorities expressly set out in the IRPA
for each of the Minister and the Governor in Council.
[14] The
Minister’s general enabling authority is set out in s. 4 of IRPA which
provides that the Minister responsible for the administration of the Act
is the member of the Queen’s Privy Council designated as such by the Governor
in Council. That Minister is the Minister of Citizenship and Immigration.
[15] Pursuant to
s. 5 of IRPA, “the Governor in Council may make any regulation that is
referred to in this Act.” Specific regulation making authority is
contained throughout IRPA. Of specific relevance to this application is
s. 14 that establishes the regulation-making authority in respect of Division 1
of IRPA – “Requirements Before Entering Canada and Selection”. This
provision is as follows:
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14. (2) The regulations may prescribe,
and govern any matter relating to, classes of permanent residents or foreign
nationals, including the classes referred to in section 12, and may include
provisions respecting
(a) selection criteria, the weight, if
any, to be given to all or some of those criteria, the procedures to be
followed in evaluating all or some of those criteria and the circumstances in
which an officer may substitute for those criteria their evaluation of the
likelihood of a foreign national’s ability to become economically established
in Canada;
(b) applications for visas and other
documents and their issuance or refusal, with respect to foreign nationals
and their family members;
(c) the number of applications that may
be processed or approved in a year, the number of visas and other documents
that may be issued in a year, and the measures to be taken when that number
is exceeded;
(d) conditions that may or must be imposed,
varied or cancelled, individually or by class, on permanent residents and
foreign nationals;
(e) sponsorships, undertakings, and
penalties for failure to comply with undertakings;
(f) deposits or guarantees of the
performance of obligations under this Act that are to be given by any person
to the Minister; and
(g) any matter for which a
recommendation to the Minister or a decision may or must be made by a
designated person, institution or organization with respect to a foreign
national or sponsor.
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(2) Ils établissent et régissent les catégories de résidents
permanents ou d’étrangers, dont celles visées à l’article 12, et portent
notamment sur :
a)
les critères applicables aux diverses catégories, et les méthodes ou, le cas
échéant, les grilles d’appréciation et de pondération de tout ou partie de
ces critères, ainsi que les cas où l’agent peut substituer aux critères son
appréciation de la capacité de l’étranger à réussir son établissement
économique au Canada;
b)
la demande, la délivrance et le refus de délivrance de visas et autres
documents pour les étrangers et les membres de leur famille;
c)
le nombre de demandes à traiter et dont il peut être disposé et celui de
visas ou autres documents à accorder par an, ainsi que les mesures à prendre
en cas de dépassement;
d)
les conditions qui peuvent ou doivent être, quant aux résidents permanents et
aux étrangers, imposées, modifiées ou levées, individuellement ou par
catégorie;
e)
le parrainage, les engagements, ainsi que la sanction de leur inobservation;
f)
les garanties à remettre au ministre pour le respect des obligations
découlant de la présente loi;
g)
les affaires sur lesquelles les personnes ou organismes désignés devront ou
pourront statuer ou faire des recommandations au ministre sur les étrangers
ou les répondants.
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[16] Regulations
dealing with a number of matters in this Division of the IRPA have been
enacted. For example, the Regulations (s. 117(1)) define the members of
the family class to include the parents and grandparents of a sponsor. The Regulations
(s. 123 to 129) deal with the spouse or common-law partner class. Of note, the Regulations
do not include similar detailed provisions for the parent and grandparent
class. Nor do the Regulations address the establishment of immigration targets
or the procedures for dealing with applications that exceed those targets.
Basis of
Applicants’ Position
[17] The
Applicants argue that, without a regulation or some other express grant of
authority, the Minister is powerless to establish the 60:40 ratio or to
prioritize other PR applicants over the FC4 class. The Applicants submit that
the Minister lacks the lawful authority to prioritize some PR applications over
others, either by preferring economic to non-economic classes, or, more
importantly, by preferring spousal and dependent family class applications to
parent and grandparent (referred to by CIC as FC4) applications. In the
Applicants’ view, such policies can be implemented under the authority of IRPA,
but must be done in accordance with ss. 5 and 14.
[18] The
Applicants do not argue that the setting of overall target for immigration to Canada requires regulations
under s. 14. Rather, they view the setting of the overall target as a
ministerial obligation under s. 94 of IRPA (the Annual Report
requirement). I express no views on whether that is correct.
Basis of
Respondent’s Position
[19] The
Respondent, on the other hand, essentially submit that the power to make these
policy and operational decisions is implied in the legislative scheme created
by IRPA and Regulations. The Respondent points to the broad
administrative powers granted to the Minister pursuant to s. 4 of IRPA
and the use of the permissive “may” in s. 14 to argue that there is no
statutory obligation to enact regulations with respect to these matters. In the
absence of regulations specifying exactly what the Minister must do with regard
to levels and targets, he argues that he should have the ability to create
policies in that regard. Otherwise, the Respondent submits, the Minister, and
CIC under him, would be incapable of managing the immigration scheme and it
simply would not function.
Need for
Policy and Procedures
[20] The Applicants
acknowledge that there is a need for a system of measures to ensure the smooth
operation of Canada’s
immigration policies. I agree. Policies such as the setting of the 60:40 ratio
and the establishment of targets by category and the procedures for allocating
departmental resources to meet the overall and category targets are necessary.
These policies and procedures provide for the orderly and efficient processing
of applications and, at the highest level, ensure that a wide variety of
interests are addressed. For example, decisions regarding immigration plans are
made in consultation with the provinces. While accepting the necessity for such
policies and procedures, the Applicants argue that the only way that
they can be put in place is through the enactment of Regulations
pursuant to s. 14(2) of IRPA.
General
Principles
[21] There is no
dispute that the Minister and CIC, as public bodies, can only act within the
constraints of their legislated jurisdiction, since their authority derives
from statute. As stated in Greenisle Environmental Inc. v. Prince Edward
Island, [2005] P.E.I.J. No. 41 (QL), 2005 PESCTD 33 at para. 17, a decision
of the Supreme Court of Prince Edward Island and relied on by the Applicants:
... [it is a] fundamental principle that
executive powers are granted by statute and defined and limited by statute. A
statutory delegate may make a decision or rule only if authorized by statute to
do so. A statutory delegate has no inherent authority . . .
[22] The
Applicants argue that the situation dealt with by the Court in Greenisle
is directly applicable
to the facts at bar. In Greenisle, the Executive Council of the P.E.I.
Government had placed a moratorium on the issuance of a permit for the
applicant to develop and operate a construction and demolition disposal site.
The issue before the Court was whether the Executive Council acted lawfully.
The Court noted that the Legislature of P.E.I. “expressly conferred on the
Minister [of Fisheries, Aquaculture and Environment] exclusive jurisdiction
over administration of the [relevant provincial statute]”. The Court also noted
that there was no provision in the statute that would permit the executive
Council to “override and suspend operation of the Regulations by stopping the
Minister and the Minister’s Delegate from performing their due administration
of the Act”. Thus, in imposing, by discretionary fiat, a moratorium on
certain construction, the Executive Council had not acted lawfully. The
Applicants assert that, by setting the disputed immigration targets and
policies rather than doing so through regulations of the Governor in Council,
the Minister was acting just as the Executive Council had in Greenisle.
[23] The situation before me
differs from that faced by the Court in Greenisle. The Executive Council
in Greenisle overrode an already existing, express, statutory grant of
power that had been vested in another corporate body. In contrast, in the
application before me, a vacuum exists; there is no express grant of power; and
the Minister has acted in that vacuum. Nonetheless, the general rule stated in
Greenisle is not controversial. Simply stating those rules does not solve
the problem put before this Court. The very question here is whether the scheme
created by IRPA does, in fact, authorize the Minister to set target
levels and to prioritize certain classes of PR applicants.
[24] The
Applicants further cite Brant Dairy Co. v. Ontario (Milk Commission),
[1973] S.C.R. 131 in their favour, but that case does not apply. As Chief
Justice Laskin stated in Canada (CRTC) v. CTV
Television Network Ltd., [1982] 1 S.C.R. 530 at 541:
The Brant Dairy case was concerned with
an attempted delegation to a subordinate agency of power conferred upon a
senior agency, the power being exercised (improperly, as held by this Court) by
a wholesale delegation thereof in the same terms in which it was imposed…. I
disagree with this attempted application of the Brant Dairy case. Either the
Executive Committee has the power it exercised in imposing the condition or it
did not. If not, the matter turned on construction of the relevant provisions
of ss. 16 and 17 and not on any principles of delegation and subdelegation.
[25] Here, too,
there is no issue of improper delegation through wholesale transferring of
discretion. No regulations were created in this case; the Minister merely
acted. Similar to the question before the Supreme Court in CTV, above the
question here is whether the Minister has the power to prioritize and
discriminate between classes.
IRPA as “Framework
Legislation”
[26] The
Applicants note that the Federal Court of Appeal described IRPA as “framework
legislation” in De Guzman v. Canada (Minister of Citizenship and
Immigration), 2005 FCA 436, [2005] F.C.J. No. 2119 (QL) at para. 23, where
“the implementation of core policy and principles… are left to regulations.”
The Applicants claim that because IRPA is “framework legislation” that
“contemplates broad delegations of legislative power” (De Guzman,
above), there is a heavy onus on the Minister to enact legislative authority
for his administrative actions.
[27] I cannot
agree with this argument. First, there is no legal onus on the Minister to
enact regulations. The Minister does not have the power to enact regulations
under IRPA. In a practical sense, he may propose or recommend
regulations; however, the power to enact regulations lies with the Governor in
Council. The Minister is charged with administrating the scheme created by IRPA
and carrying out powers conferred by IRPA and the Regulations. The
Governor in Council has the authority to enact regulations.
[28] Further, the
Court of Appeal, in De Guzman, was considering the legal validity of
regulations made under s. 14 of IRPA. As noted at para. 24 of De
Guzman, s. 14 of IRPA is drafted in language which, on its face,
confers wide regulation-making powers, exercisable by the Governor in Council
by virtue of subsection 5(1). As acknowledged by the Respondent, there is no
question that the Governor in Council could pass regulations setting targets
for immigration and establishing procedures to dealing with the targets.
[29] In sum, De
Guzman supports the view shared by all parties to this application that s.
14 authorizes the Governor in Council to enact regulations setting immigration
targets by class and procedures to address those targets. However, this case
does not stand for the proposition that s. 14 places a burden on either the
Minister or the Governor in Council to enact regulations. Nor does this case
address the legality or illegality of policy or administrative decisions of the
Minister.
Relevant
Jurisprudence
[30] There are
cases, however, that are helpful in analyzing the question before me of the
authority of the Minister in the face of an unused regulation making power.
[31] The first of
these cases is Capital Cities Communications Inc. v. Canadian Radio-
Television Commission, [1978] 2 S.C.R. 141. In Capital Cities, the
Canadian Radio-television and Telecommunications Commission (CRTC) had refused
to alter a license granted to Rogers Cable TV Ltd. based on previous policy
statements issued by itself and the Department of Transport. No regulations,
upon which the CRTC could have based their decision, had been enacted in spite
of the existence of a regulation-making power vested with the Governor in
Council under the Broadcasting Act. The majority of the Court asked this
question (at 170):
However, absent any regulations, is the
Commission obliged to act only ad hoc in respect of any application for
a licence or an amendment thereto, and is it precluded from announcing policies
upon which it may act when considering any such applications?
[32] As in the
present case, in Capital Cities the regulatory power under the governing
statute was very broad. The majority of the Supreme Court found that it was
“eminently proper that [the CRTC] lay down guidelines from time to time”, since
the governing statute had wide-ranging, embracive objects, the CRTC was given a
broad mandate to manage the Canadian broadcasting scheme, and the stated
policies were arrived at after input from and consultation with the interested
parties.
[33] Capital Cities was followed
four years later by CTV, above. That case dealt with a decision by the
CRTC Executive Committee to impose, without regulatory authority, a condition
on CTV’s broadcasting license to include a certain amount of Canadian content.
The Supreme Court unanimously adopted the reasoning of the Chief Justice of the
Court of Appeal’s decision that went before them, to the effect that the broad
terms found in the objectives of the governing statute authorized the CRTC to
impose the license condition. The CRTC maintained the power to fulfil the
objectives of the statute by imposing conditions in an ad hoc manner
unless and until regulations were enacted; the regulations would have the
effect of ousting the Executive Council’s ad hoc power.
[34] Carpenter
Fishing Corp. v. Canada (Minister of
Fisheries and Oceans), [1997] F.C.J. No. 1811 (QL) (F.C.A.) is also
relevant to the issue before me. In that case, the Minister of Fisheries and
Oceans (MFO) created a formula, which was in the nature of both a policy and a
guideline, to govern how fishing licences would be granted by his Department on
an individual basis. The Federal Court of Appeal found the MFO’s decision to be
lawful. The decision made by the MFO is similar to the Minister of Citizenship
and Immigration’s decision to prioritize certain applications. It was made in
response to serious concerns which fell directly under his responsibilities. Hence,
the situation in Carpenter Fishing and here are comparable. The actions
of both Ministers were practical responses informed by the legitimate policy
considerations. The legislative schemes under which each Minister acts are
complex and involve dynamic issues.
[35] Taken
together, Carpenter Fishing, Capital Cities, and CTV
provide direction in this case. The Minister is responsible for the
administration of IRPA. In the absence of enacted regulations, he has
the power to set policies governing the management of the flow of immigrants to
Canada, so long as
those policies and decisions are made in good faith and are consistent with the
purpose, objectives, and scheme of IRPA. The Governor in Council retains
the power to direct how the Minister should administer IRPA through
regulations, and may oust the Minister’s powers. However, where there is a
vacuum of express statutory or regulatory authority, the Minister must be
permitted the flexible authority to administer the system. Without the policies
and procedures impugned by the Applicants, the system would fail. Parliament
could not have intended that the system fail.
Specific
Authority to Prioritize within the Family Class
[36] The
Applicants also argue, in conjunction with their main thrust, that the Minister
lacked any specific authority to prioritize or discriminate between different
groups of family class applicants. I note that such discrimination is
recognized in the provisions of IRPA and the Regulations; see for
example special privileges conferred only on spouses and partners, set out in
Division 2 of the Regulations. It would seem that the kind of
discrimination that the Applicants find upsetting is inherent in IRPA,
but even if it were not, I am convinced that the power to draw this distinction
would fall within the Minister’s power to manage the immigration flow on the
basis of social and economic policy considerations. It could be said that this
kind of discrimination was the same kind of distinction made by the MFO in Carpenter
Fishing, above, based upon vessel length and historical performance of the
licence owner. There is nothing in IRPA or the Regulations that
appears to detract from such a power; again, this is reflective of the
“framework” nature of the Act.
Summary
[37] In summary, I
am satisfied that, in the absence of regulations made under s. 14(2) of IRPA,
the Minister acted lawfully in establishing the 60:40 ratio, in establishing
targets for visa approvals by class and in setting procedures for prioritizing
sponsored applications within the family class.
Mandamus
Test for Mandamus
[38] The equitable
remedy of mandamus lies to compel the performance of a public legal duty
that a public authority refuses or neglects to carry out when called upon to do
so. Mandamus can be used to control procedural delays (Blencoe v.
British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307 at para.
149). The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General),
[1994] 1 F.C. 742 (C.A.), aff'd [1994] 3 S.C.R. 1100 (and, more recently,
discussed in the immigration context in Dragan v. Canada (Minister
of Citizenship and Immigration), [2003] 4 F.C. 189 (T.D.), aff’d 2003 FCA 233). The eight
factors are:
(i)
There
must be a public legal duty to act;
(ii)
The
duty must be owed to the Applicants;
(iii)
There
must be a clear right to the performance of that duty, meaning that:
a. The
Applicants have satisfied all conditions precedent; and
b. There must
have been:
I.
A
prior demand for performance;
II.
A
reasonable time to comply with the demand, unless there was outright refusal;
and
III.
An
express refusal, or an implied refusal through unreasonable delay;
(iv)
No
other adequate remedy is available to the Applicants;
(v)
The
Order sought must be of some practical value or effect;
(vi)
There
is no equitable bar to the relief sought;
(vii)
On
a balance of convenience, mandamus should lie.
[39] The
Applicants’ arguments rely on their assertion that the Minister’s decision to
prioritize other immigrant classes over the parents and grandparents class was
unlawful. A finding that the actions of the Minister were unlawful would have
provided strong support for granting mandamus. If the Minister had no
legal authority to prioritize the various family class applications or to pause
the processing of sponsorship applications for parents and grandparents, the
arguments that the delay was unreasonable and that the balance of convenience would
favour the Applicants would appear to have merit. However, the Applicants have
not been successful on the first issue and the arguments that rely on their
assertions of unlawful actions are not relevant.
[40] Nevertheless,
I will examine the various factors on the basis of the facts before me,
relevant jurisprudence and my conclusion that the Minister’s actions were
lawful.
Public Legal Duty to Act
[41] Both parties
agree that there is a public legal duty requiring the Minister or his delegates
to process the Applicants’ PR applications, primarily by virtue of section
11(1) of IRPA.
No Clear
Right to the Performance of a Duty: Delay
[42] The next factor to be
examined is the existence of a clear right to the performance of the duty. There are a
number of elements to this factor of the test for mandamus. The
Applicants must have satisfied the conditions precedent giving rise to the
duty; there must have been a prior demand for the performance; and there must
have been unreasonable delay that amounts to a refusal. It is clear that the
Applicants have made a demand for performance. I am also prepared to assume,
without deciding, that the conditions precedent have been satisfied. I will
consider the final component of this factor; that is, the issue of delay.
[43] One
difficulty with this application is that the delay complained of by the
Applicants is no longer active. While there was a lengthy delay at CPC-M of the
sponsorship application, there is no indication that the current steps in
processing the PR application are being delayed in any way. Given the current
time forecast for a decision on the PR application, a writ of mandamus
specifying that, in essence, they process Mr. Hassan Vaziri’s application
within a certain period of time will not change much. In short, there would be
little practical effect of an order of mandamus.
[44] The
Applicants submit that the Court should calculate the time that has been
expended handling their files from the date of filing the sponsorship
applications, and not from the later date of filing the PR applications. The
Applicants’ main argument is to point out that the Minister clearly regulates
the number of parents and grandparents accepted to Canada each year by
throttling the “first stage” of the process: the sponsorship application. Hence,
it would be manifestly unfair to not consider the full amount of time the
Applicants have been waiting to finally know whether they can immigrate to Canada or not.
[45] The
Respondent disagrees, pointing out that the decisions are made by separate
decision-makers and involve separate considerations; and that there may be a
gap in time up to a year between the two applications, since the sponsored
parents or grandparents are under no obligation to file a PR application after
being sponsored.
[46] In my view,
it is not necessary to decide this question. For purposes of this application,
I will assume, without deciding, that the time frame should be measured back to
the original date of filing of the two sponsorship applications. That is, I
will consider whether, cumulatively, the time for processing both the
sponsorship application and the PR application have been unreasonable.
[47] In this case,
has the time that has passed since the Applicants filed their sponsorship
applications amounted to unreasonable delay? I must consider the length of the
delay and the reasons for it.
[48] In this case,
the processing time so far has been marginally over 3 years. What length is too
long? Justice Kelen provided the following wisdom in Dragan, above at
para. 55:
A few of the applicants have been waiting
for over 2 to 3 years. What period of time would be considered too long to
process an immigration file? In [Bhatnager v. Canada (Minister of
Employment and Immigration), [1985] 2 F.C. 315 (QL) (T.D.)], the delay was
four and a half years; in [Dee v. Canada (Minister of
Citizenship and Immigration, (1998), 46 Imm. L.R. (2d) 278
(F.C.T.D.))], and in [Bouhaik v. Canada (Minister of Citizenship and
Immigration), [2001] A.C.F. No. 155 (QL) (T.D.)], about four years; in Conille,
supra, and in Platonov, supra, about three years. All
those delays were considered unreasonable on the facts. The holdings did not,
in the words of Strayer J. in Bhatnager, supra. at page 317,
"fix any uniform length of time as being the limit of what is
reasonable." Justice MacKay in Platonov, supra, also
expressly cautioned against such an approach at paragraph 10:
Each
case turns upon its own facts, and I am not persuaded that the jurisprudence in
relation to this matter is particularly helpful, except to outline some
parameters within which the Court has issued an order in the nature of mandamus
where it has found there has been unusual delay which is not reasonably
explained.
[49] At para. 57
of Dragan, above, Justice Kelen noted a pair of cases in which much
earlier lengths of delay had grounded orders for mandamus, because the
effect of the delay resulted in the removal or loss of the applicants’
substantive rights (this was the case in Dragan itself, where delay
threatened to foreclose any possibility of becoming a permanent resident in the
future).
[50] In the case
at hand, the delays to date, and any further possible delay, have not removed
the parents’ or grandparents’ substantive rights; rather, it prevents such
rights from being vested for a time. This differs from the situation in Dragan
where the rights to a certain method of processing was set to expire. The
case before me resembles those cited above at para. 55 of Dragan, as
well as Hanano v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 1212 (QL), 2004 FC 998, and Conille v.
Canada (Minister of Citizenship and Immigration), [1999] 2 F.C.
33.
In those cases, the delay was found to be excessive, unjustified, and, thus,
unreasonable. However, the amount of time in those cases is considerably
longer: generally 4 to 5 years, or in the case of Conille, 3 years.
[51] Fortunately, the Court has further guidance in determining
what amounts to unreasonable delay. In Conille at para. 23, Justice
Tremblay-Lamer held that if a delay is to be considered unreasonable, it must
meet three requirements:
(1) the delay in
question has been longer than the nature of the process required, prima facie;
(2) the applicant and
his counsel are not responsible for the delay; and
(3) the authority
responsible for the delay has not provided satisfactory justification.
[52] The same
guidance was adopted and applied in Hanano, above at para. 10, and Shapovalov v.
Canada (Minister
of Citizenship and Immigration), 2005 FC 753 at para. 13. To this list of
three requirements, I would also add that a person seeking mandamus
based on delay must also demonstrate significant prejudice which results from
the delay (Blencoe, above at para. 101).
[53] There are two
ways to look at whether the delay has been longer than the nature of the
process required. The first way is to consider a PR application in a vacuum,
without considering whether it relates to a parent or grandparent or to someone
from another class. In that case, the deliberate delay at the sponsorship stage
and at the beginning of the PR application stage clearly extends the amount of
time required to process the Applicants’ applications beyond the time strictly
necessary to assess the applications.
[54] On the other
hand, if one takes a wider and more detailed view, then the length of time
taken is within the time that the nature of the process requires, because there
are simply too many applications for Canada to allow them all,
resulting in annual levels being set. Even among the number of applications
that can be allowed within a given year, the Minister must discriminate between
the classes in order to meet the goals of IRPA and the explicit policies
of the Government. In this context, applications relating to parents and
grandparents require a longer time to process than most other PR applications.
The nature of the process is longer.
[55] I prefer the
latter view. The “nature of the process” must be informed by a full
understanding of where the Applicants’ applications fit within the immigration
scheme. It is inherent in the system, as currently constituted, that some PR
applications are processed differently than others. FC4 applications are
processed slower, in accordance with policies. Therefore the length of time
taken to process the Applicants’ files must be viewed in light of this longer
process. Upon the evidence before me, then, it does not seem that the delay to
date – between 3 and 4 years – is excessive. It would appear that this is in
accordance with the expected times to process FC4 applications that were filed
in 2003. Indeed, the Respondent indicates that the Applicants’ files are
expected to be completed sooner than would be expected, since the rate of PR
applications being received in the last year or two is lessening.
[56] There is no
contention that the Applicants are responsible for the delay in the process.
[57] I must next
consider whether this is justification for the delay. In my view, the
Respondent has provided a satisfactory justification for the delay, the
substance of which I have discussed immediately above and also in some detail
in the analysis of the first issue, above. In short, the delay is the direct
result of lawful Ministerial policies which prioritize other PR applicants over
the parents and grandparents class, which were effected in response to an
overwhelming level of applications that had been submitted to CIC in recent
years. I am satisfied that a reasonable explanation for the delay has been
provided.
[58] Finally,
while the Applicants are seriously inconvenienced and concerned by the delay, I
am not persuaded that the delay has significantly prejudiced the Applicants.
The separation of parent and child appears to be the main concern of the
Applicants in this case. However, the separation can be alleviated through the
use of Temporary Resident Visas; this is discussed below.
[59] In sum, the
Applicants have not made out an unreasonable delay and, consequently, there is
no
clear right to the performance of that duty.
An Adequate
Alternative Remedy Exists
[60] The
Applicants contend that the only way for them to have “secure immigration
status” is to have their applications finalized. The Respondent argues that the
Applicants may take advantage of Temporary Resident Visas (TRVs) in order to
reunite family members while the PR assessment process continues. These visas
(often referred to as visitor visas) are obtained quickly and easily, they can
be valid for fixed periods of time and they may be renewed. Our Court has found
in past cases that temporary resident status, or its analogue under the
repealed Immigration Act, can fulfil the objective of IRPA to
reunite families (see Gupta
v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1099 at
para. 11 (T.D.) (QL); Zhang v. Canada (Minister of Citizenship and
Immigration), 2005 FC 427 at para. 8).
[61] As evidenced
by the affidavits filed by the Applicants, the Applicants appear to premise
their arguments on the desire to be reunited after many years apart. Through
the use of TRVs, the father and son have at least one other way of being
united. While the PR applications are being assessed, TRVs may provide interim
relief.
[62] While I
appreciate that the Applicants live with uncertainty while the PR applications
are being resolved, and that TRVs do not provide the same security or rights as
permanent resident status, the use of TRVs is an alternative that is adequate –
albeit not perfect. There is no pressing need in this case that the rights
vested by PR status be acquired as soon as possible.
Practical Effect
[63] As noted earlier, overseas visa officers are now processing
the father’s PR application. In light of this, I am also not convinced
that a writ of mandamus would be of any practical effect.
Balance of
Convenience Favours the Respondent
[64] I am of the
view that the balance of convenience favours the Respondent. Reviewing the
evidence of how CIC carefully manages and coordinates all aspects of
immigration to Canada, I am struck by the complexity of the
operation. The result of an order of mandamus is inevitably a disruption
to the operation of CPC-M and overseas visa offices. An order to process
immediately any particular application will result in slower processing of the
remaining applications in the queue. This is not a desirable outcome unless
other factors for mandamus are compelling.
[65] Further,
given that:
- TRVs
provide an alternative way for Mr. Hassan Vaziri to be with his son for a
significant period of time; and
- the
application in issue is likely to be processed in early 2007;
I am not
satisfied that the balance of convenience favours the Applicants.
Summary
[66] In sum, the
facts do not support the Applicants in respect of the conditions required for a
writ of mandamus. The Applicants do not enjoy a clear right to the
performance of the requested duty, since there has not been unreasonable delay.
There also appears to be an alternative – albeit not perfect – remedy. An order
of mandamus would have little practical effect. Finally, the balance of
convenience favours the Respondent.
[67] For
these reasons, mandamus does not lie in the present circumstances.
Conclusion
[68] In
conclusion, I find that:
- the Minister acted
lawfully in setting the expected ratio for economic to non-economic
immigration, in establishing targets for immigration within described
classes and groups of prospective immigrants and in establishing
procedures that prioritized the processing of applications;
- while the Governor
in Council may make regulations to address all of these matters, there is
no obligation on the Governor in Council to do so;
- the existence of a
non-mandatory Governor in Council regulation-making power does not
preclude the Minister responsible for the administration of IRPA,
from taking these policy and administrative decisions.
- the Applicants have
not satisfied me that the discretionary remedy of mandamus should
be granted.
[69] The
parties to this application have jointly submitted two questions for
certification.
Question #1
In the
absence of the Governor in Council having enacted relevant regulations and
given the Minister of Citizenship and Immigration’s responsibility for the
administration of IRPA, does the Minister of Citizenship and Immigration
have authority to:
(a) set annual target ranges
for the total number of immigrants to Canada?
(b) determine how the annual
target range will be distributed among the three immigrant classes (economic,
refugee and family class)?
(c) distinguish between
members of the same class, by processing spouses, partners and children, in
priority to parents and grandparents?
Question #2
Given the
answers to Question #1, have the Applicants established an entitlement to the
discretionary and equitable remedy of mandamus, given all the
circumstances of this case?
[70] I
agree that these are issues of general importance that are determinative of the
questions in this judicial review. Accordingly, I will certify these questions.
ORDER
This Court orders that the application for judicial review is
dismissed, with the following questions certified:
1. In
the absence of the Governor in Council having enacted relevant Regulations and
given the Minister of Citizenship and Immigration’s responsibility for the
administration of IRPA, does the Minister of Citizenship and Immigration
have authority to:
(a) set annual
target ranges for the total number of immigrants to Canada?
(b) determine how
the annual target range will be distributed among the three immigrant classes
(economic, refugee and family class)?
(c) distinguish
between members of the same class, by processing spouses, partners and
children, in priority to parents and grandparents?
2. Given
the answers to Question #1, have the Applicants established an entitlement to
the discretionary and equitable remedy of mandamus, given all the
circumstances of this case?
“Judith A. Snider”
_____________________________
Judge
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