Date: 20061026
Docket: IMM-7322-05
Citation: 2006
FC 1269
Ottawa, Ontario,
October 26, 2006
Present: The Honourable Mr. Justice Shore
BETWEEN:
LAABOU, KHALID
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
[11] Mandamus
is a discretionary equitable remedy. Before this Court will order a writ of mandamus,
the following criteria, as set out by Mr. Justice Robertson in Apotex Inc
.v. Canada, must be satisfied:
(a) there must be a public
legal duty to act under the circumstances;
(b) the duty
must be owed to the applicant;
(c) there must be a clear
right to performance of that duty, and in particular the applicant must have
satisfied all conditions precedent giving rise to the duty;
(d) no other
adequate remedy is available to the applicant;
(e)
the order sought must
have some practical effect;
(f) in the exercise of its discretion,
the court must find no equitable bar to the relief sought; and
(g) on a balance of convenience, an order
of mandamus should issue.
(Khalil v. Canada
(Secretary of State), [1999] F.C.J. No. 1093 (QL), at paragraph 11,
which restated the criteria set out by this Court in Apotex Inc. v. Canada
(Attorney General), [1994] 1 F.C. 742, [1993] F.C.J. No. 1098 (QL)).
NATURE OF THE LEGAL PROCEEDING
[2]
This is an application by the applicant for mandamus
compelling Citizenship and Immigration Canada (CIC) to make a decision on
his request for exemption from the permanent resident visa requirement in the
“Humanitarian and Compassionate Considerations Class” and the “Spouse or
Common-Law Partner in Canada Class.”
FACTS
[3]
The applicant, Mr. Khalid Laabou, is 32 years
old and a citizen of Morocco. He arrived in Canada in November 2003. On
December 1, 2003, he applied for refugee status, which was denied by the
Refugee Protection Division of the Immigration and Refugee Board on May 26,
2004. The Federal Court dismissed the applicant’s application for leave and
judicial review of the decision.
[4]
On March 7, 2004, Mr. Laabou married Ms. Hayat
El Mouda, who is a permanent resident of Canada. Their son was born on June 6,
2005.
[5]
On July 5, 2004, Mr. Laabou submitted a request
for exemption from the permanent resident visa requirement in the “Humanitarian
and Compassionate Considerations Class” (APR for Humanitarian Considerations
(HC)), together with an application to sponsor and undertaking signed by his
wife.
[6]
According to Mr. Laabou, he was informed in July
2005 that his request would be processed in the prescribed class of spouse or
common-law partner in Canada under the new departmental policy of February
2005; Mr. Laabou’s wife signed a new sponsorship application to that effect.
Based on that, Mr. Laabou signed a form indicating he would not apply for a
Pre-Removal Risk Assessment (PRRA).
[7]
On July 25, 2005, his APR based on humanitarian
considerations was processed, a new sponsorship undertaking was signed, and a
selection certificate was issued to him. No fee was required or paid for this
application, since it was not a new APR but a review of the one filed in
July 2004.
[8]
On October 13, 2005, Mr. Laabou’s wife left the
matrimonial home with their child, and did not indicate where she was going.
Her reasons for doing so were blocked out in the panel record. Mr. Laabou
states that he had to file a complaint with the police to find his son; they
located the child on November 4, 2005, but could not provide the applicant with
the new address.
[9]
A little more than a month later, Mr. Laabou
filed a motion for separation from bed and board before the Québec Superior
Court, but it appears that the motion has not been heard. Mr. Laabou and
his wife have not cohabited since then.
[10]
The Minister submits that on October 14, 2005,
the applicant’s wife sent a written request to CIC to withdraw her sponsorship.
Mr. Laabou claims that he was never informed of his wife’s request or the
reasons for it. He also states that he never had the opportunity to present his
arguments opposing this request.
[11]
The Minister states that the request to withdraw
the sponsorship was accepted by CIC, since no final decision had yet been made
on the applicant’s APR. Mr. Laabou denies this.
[12]
Given that the sponsorship undertaking has been
withdrawn, the Minister contends that the applicant no longer meets the
requirements of the public policy on spouses, and therefore his APR cannot be
assessed on the basis of the spouse or common-law partner in Canada class.
Mr. Laabou’s application must accordingly be assessed on the basis of the
general HC provisions in the IP 5 Manual. Mr. Laabou disputes this.
[13]
Mr. Laabou’s wife did not attend the meeting
with CIC on October 26, 2005, to finalize the sponsorship matter.
[14]
Mr. Laabou submits that he was informed on
November 1, 2005, that his application for permanent residence had not been
refused, but had been transferred to the PRRA to assess the humanitarian
grounds and the risks of removal.
[15]
The Minister argues that the sponsorship
application filed by Mr. Laabou’s wife had been withdrawn, and that Mr. Laabou
was informed of this on November 22, 2005.
[16]
On December 14, 2005, the PRRA Officer assessed
Mr. Laabou’s application in accordance with general procedures; he had to
determine whether Mr. Laabou would encounter unusual and undeserved or
disproportionate hardship by having to obtain a permanent resident visa on
humanitarian and compassionate grounds from outside Canada. This application
was rejected.
[17]
Accordingly, Mr. Laabou is asking the Court to
order CIC to make a decision on his application for permanent residence in the
spouse or common-law partner in Canada class, essentially confirming that the
sponsorship withdrawal is invalid.
[18]
Mr. Laabou contends that failing to make a
decision on his application is a breach of procedural fairness and legitimate
expectation, since his wife’s sponsorship is still valid and, therefore, his
application can be accepted.
ISSUE
[19]
Have the conditions precedent for a writ of mandamus
been met?
[20]
In the view of the Court, Mr. Laabou has not
satisfied the necessary requirements for a writ of mandamus, because he
does not meet one of the essential conditions for admission as a permanent
resident in the spouse or common-law partner in Canada class, and the issues
raised by this application are moot.
The
conditions precedent for a writ of mandamus
[21]
A writ of mandamus is an extraordinary
remedy that only applies in limited circumstances.
[22]
The conditions precedent for a writ of mandamus
have been identified in the case law, and are clearly delineated by the Federal
Court of Appeal in Khalil, above, which restated the criteria set out by
the same Court in Apotex, below:
[11] Mandamus is a discretionary
equitable remedy. Before this Court will order a writ of mandamus, the
following criteria, as set out by Mr. Justice Robertson in Apotex Inc .v.
Canada, must be satisfied:
(a) there must be a public
legal duty to act under the circumstances;
(b) the duty
must be owed to the applicant;
(c) there must be a clear
right to performance of that duty, and in particular the applicant must have
satisfied all conditions precedent giving rise to the duty;
(d) no other
adequate remedy is available to the applicant;
(e)
the order sought must
have some practical effect;
(f) in the exercise of its discretion,
the court must find no equitable bar to the relief sought; and
(g) on a balance of convenience, an order
of mandamus should issue.
(a) Conditions precedent giving rise to a public legal duty to
act under the circumstances
[23]
Mr. Laabou submits that, since the sponsorship
is still valid, CIC has a legal duty to decide whether the applicant falls
within the spouse or common-law partner in Canada class.
[24]
To better respond to this allegation, the Court
will first situate this case in its legislative context, and then review the
criteria that bar Mr. Laabou’s application for mandamus.
(i) The regulatory scheme
governing sponsored applications for permanent residence
[25]
Under subsection 13(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c.-27 (Act), “[a] Canadian citizen or
permanent resident may, subject to the regulations, sponsor a foreign national
who is a member of the family class.” This class is established “on the basis
of the [foreign national’s] relationship as the spouse, common-law partner,
child, parent or other prescribed family member of a Canadian citizen or
permanent resident.” (subsection 12(1) of the Act). A sponsored application for
permanent residence is, therefore, a two-pronged process: the application for
residence and the sponsorship application.
[26]
Under section 10 of the Canada-Québec Accord
Relating to Immigration and Temporary Admission of Aliens and section 13 of
the Act, the Governor in Council has prescribed three classes of foreign
nationals who may apply for permanent residence in Canada without submitting a
visa application before entering Canada (subsection 11(1) of the Act): (1) the
live-in caregiver class; (2) the spouse or common-law partner in Canada class;
and (3) the protected temporary residents class. Only the second one is
relevant in this proceeding.
[27]
Section 124 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations), imposes three
conditions on applicants applying for permanent residence in this class: (1)
they are the spouse or common-law partner of a sponsor and cohabit with that
sponsor in Canada; (2) they have temporary resident status in Canada; and (3)
they are the subject of a sponsorship application. Failure to meet one of these
conditions is fatal to the applicant’s application for permanent residence.
(ii) The conditions for sponsored permanent residence that bar Mr.
Laabou’s application for mandamus
[28]
In this case, the applicant’s wife sent a
written request to withdraw her sponsorship, which was accepted by CIC on
October 14, 2005. Mr. Laabou was informed of this withdrawal on
Nov. 22, 2005. Thus, it appears that the sponsorship withdrawal is
valid, and that Mr. Laabou does not meet the third condition in section 124 of
the Regulations.
[29]
It is not clear from the evidence that the
applicant was informed that his wife had withdrawn her sponsorship; however,
Mr. Laabou’s admission that he no longer lives with his wife is a bar to his
application for permanent residence in the spouse or common-law partner in
Canada class.
[30]
Subsection 124(a) of the Regulations provides:
|
124. A
foreign national is a member of the spouse or common-law partner in Canada
class if they
|
124.
Fait partie de la catégorie des époux ou conjoints de fait au Canada
l’étranger qui remplit les conditions suivantes:
|
|
(a)
are the spouse or common-law partner of a sponsor and cohabit with that
sponsor in Canada;
. . .
|
a) il est l’époux ou le conjoint de fait d’un répondant et vit avec
ce répondant au Canada;
[…]
|
[31]
Whether the spouses intend to live together is
irrelevant to the applicable criterion, as is the fact that Mr. Laabou was not
the one to leave the matrimonial home. In any event, Mr. Laabou’s motion for a
separation of bed and board demonstrates that he no longer intended to cohabit
with his wife.
[32]
By seeking to be relieved of that obligation,
Mr. Laabou clearly indicated that he no longer satisfied one of the essential
conditions for permanent residence in the spouse or common-law partner in
Canada class. Therefore, he cannot become a permanent resident in Canada under
paragraph 72(1)(d) of the Regulations:
|
72. (1) A foreign national in Canada
becomes a permanent resident if, following an examination, it is established
that
|
72. (1) L’étranger au Canada devient
résident permanent si, à l’issue d’un contrôle, les éléments suivants sont
établis:
|
|
. . .
|
[…]
|
|
(d) they meet the
selection criteria and other requirements applicable to that class;
. . .
|
d) il satisfait
aux critères de sélection et autres exigences applicables à cette catégorie;
[…]
|
[33]
Accordingly, Mr. Laabou is not entitled to the
relief sought and, therefore, does not meet the criteria for a writ of mandamus,
in particular, the requirement of satisfying all conditions precedent giving
rise to a public legal duty (Apotex, above). For the same reasons, the
balance of convenience does not favour Mr. Laabou, and the circumstances do not
warrant the issuance of a writ of mandamus.
(b) The issues raised in the application are moot
[34]
In addition to the foregoing, it is unnecessary
for the Court to rule on the validity of the sponsorship withdrawal, if this
issue directly concerns Mr. Laabou: the undertaking is a contract, a juridical
act driven by the will of the parties, signed in favour of the State and not
the applicant, but for the benefit of the foreign national (sections 131 and
137 of the Regulations; section 42 of the Regulation respecting the
selection of foreign nationals, An Act respecting immigration to Québec,
(R.S.Q. c. 1-02, s. 3.3); R.R.Q. 1981, c. M-23.1, r. 2; S.Q. 1994, c. 15, s.
12. ; Québec (Attorney General) v. Kechichian, [2000] R.J.Q. 1730,
[2000] J.Q. No. 2049 (QL), paragraphs 14 to 27.)
CONCLUSION
[36]
Mr. Laabou is unable to obtain permanent
residence in the spouse or common-law partner in Canada class, because he no
longer cohabits with his wife. Absent an application for sponsorship, this
condition is essential to obtain permanent residence in this class.
Accordingly, Mr. Laabou has not satisfied all conditions precedent giving rise
to a public legal duty to act under the circumstances.
[37]
Since an order for a writ of mandamus is
not warranted, the motion is dismissed.
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