Date : 20050930
Docket: IMM-1451-05
Citation: 2005 FC 1290
BETWEEN:
HENRI JEAN-CLAUDE SEYOBOKA
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review in order to obtain a writ of mandamus, ordering the respondent to determine and make a definitive decision on the applicant's application for permanent residence dated August 12, 1996, in Canada.
[2] Henri Jean-Claude Seyoboka (the applicant) is a citizen of Rwanda. He arrived in Canada on January 17, 1996, the date that he claimed refugee status.
[3] On October 25, 1996, the Immigration and Refugee Board (the IRB) recognized the applicant as a Convention refugee.
[4] On August 12, 1996, the applicant filed an application for permanent residence. To date, the respondent has still not processed that application.
[5] On several occasions, the applicant tried to find out the status of his application. The respondent always replied that the security check was ongoing.
[6] The applicant submits that paragraph 9(1)(a) and subsection 21(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and paragraphs 70(1)(a) and 70(2)(c) of the Immigration and Refugee Protection Regulations, SOR/2002-227, require Citizenship and Immigration Canada to allow a permanent residence application once the required conditions are met. The applicant submits that he fulfilled all of the conditions for his application to be issued. The respondent, however, submits that there are still security checks to be done and that the applicant must undergo another medical examination.
[7] The issuance of a writ in mandamus is an extraordinary remedy in equity. The Federal Court of Appeal established the conditions for granting a writ of mandamus in Apotex Inc. v. Canada (Attorney General et al.), [1994] 1 F.C. 742:
1. There must be a public legal duty to act.
2. The duty must be owed to the applicant.
3. There must be a clear right to performance of that duty.
4. Where the duty sought to be enforced is discretionary, the nature of the discretionary power and the manner in which it must be exercised must be considered.
5. No other adequate remedy is available to the applicant.
6. The order sought will be of some practical value or effect.
7. The Court in the exercise of its discretion finds no equitable bar to the relief sought.
8. On a "balance of convenience" an order in the nature of mandamus should issue.
[8] Even though at first glance nine years is a long time for someone who is waiting to be given permanent residence status, mandamus applications must be assessed in accordance with the particular facts of the case; the case law is used only to outline the parameters (Mohamed v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 1677, at paragraph 15). In this case, the applicant made some significant additions to his file over the last nine years. First, the applicant amended his original permanent residence application form in May 1998, adding to it that he had studied at the Military Academy and that he had been employed with the Rwanda Armed Forces, thereby rectifying two previous false statements on the subject. Later, on November 1st, 2004, the applicant provided two documents referring to his involvement in the genocide in Rwanda.
[9] In my opinion, considering the facts presented by the applicant since his initial permanent residence application, the respondent is justified in completing its security check. When it is a matter of security, the Court must not issue an order of mandamus having the effect of an aborted or abbreviated investigation (Bouhaik v. Minister of Citizenship and Immigration, [2001] F.C.J. No. 155 (QL)).
[10] Further, the Minister of Public Safety applied to the IRB to annul the applicant's refugee status. That application, though late, is certainly not frivolous. If it is granted, any right to permanent residence would be annulled. In the interim, therefore, until the application by the Minister of Public Safety is decided, in my opinion issuing a writ of mandamus would serve no purpose (see, for example, Kang v. Minister of Citizenship and Immigration, [2001] F.C.J. No. 1544 (QL), Chaudhry v. Minister of Citizenship and Immigration, [1998] F.C.J. No. 1695 (QL) and Singh v. Minister of Citizenship and Immigration, [1998] F.C.J. No. 585 (QL)).
[11] For all of these reasons, considering the requirements listed in Apotex Inc., supra, to issue a writ of mandamus, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
September 30, 2005
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1451-05
STYLE OF CAUSE: HENRI JEAN-CLAUDE SEYOBOKA v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 12, 2005
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: September 30, 2005
APPEARANCES:
Rock Séguin FOR THE APPLICANT
Richard Casanova FOR THE RESPONDENT
SOLICITORS OF RECORD:
Rock Séguin FOR THE APPLICANT
Vaudreuil-Dorion, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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