Date: 20050530
Docket: IMM-8214-04
Citation: 2005 FC 764
BETWEEN:
ZEKRI MUSA BEN-MUSA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLANCHARD J.
INTRODUCTION
[1] By means of an application for judicial review, the applicant is asking the Court to issue a writ of mandamus to compel the Minister of Citizenship and Immigration to make a decision on an application for permanent residence received by the Canadian Embassy in Paris (the Embassy) on March 8, 2001.
BACKGROUND FACTS
[2] The applicant is a businessman from Libya. On November 20, 2000, the applicant was selected as an immigrant investor by Quebec. On February 12, 2001, he submitted an application for permanent residence to the Embassy.
[3] In a letter dated March 8, 2001, the Embassy's Immigration Service acknowledged receipt of the applicant's application for permanent residence in Canada and informed him that the total processing time frame was usually five to seven months.
[4] On January 21, 2002, the applicant was informed that the background check was not finished and would take at least another six months.
[5] On July 24, 2002, after considerable correspondence was exchanged with the Embassy's Immigration Service, the applicant was informed that the time frame was now indefinite, since they were waiting for a criminal record check. The applicant was asked to be patient.
[6] On November 4, 2002, the applicant was informed that his file was being reviewed.
[7] In processing the application, the respondent asked the applicant to provide numerous additional documents. Considerable correspondence was then exchanged between the applicant, officers responsible for immigration matters at the Embassy and other officials involved in the file.
[8] On July 15, 2003, the Canadian Security Intelligence Service informed the applicant that the results of the security checks had been sent to Embassy officials on October 18, 2001.
[9] After the applicant sent a letter on July 23, 2003, he was informed that the background check was not yet completed. He was told he would have to wait an additional six to nine months.
[10] On January 23, 2004, the applicant was asked for more documents to update his file, the same documents which, according to the applicant, had already been provided.
[11] The applicant is still waiting for a final decision on his application for permanent residence.
[12] On January 26, 2005, the Court allowed his application for leave for judicial review.
ISSUE
[13] The issue in this case is the following: is a writ of mandamus compelling the Minister of Citizenship and Immigration to process the applicant's permanent residence application justified in light of the time that has elapsed since the application was submitted?
ANALYSIS
[14] The issuance of a writ of mandamus, an extraordinary equitable remedy, is subject to conditions precedent established by the Supreme Court of Canada in Apotex Inc. v. Canada (Attorney General), [1994] 3 S.C.R. 1100:
1. There is a public legal duty to act;
2. The duty is owed to the applicant;
3. There is a clear right to performance of that duty, in particular:
(a) The applicant has satisfied all conditions precedent giving rise to the duty;
(b) There was a prior demand for performance of the duty, a reasonable time to comply with the demand, and a subsequent refusal which can be either expressed or implied;
4. No other adequate remedy is available to the applicant;
5. The balance of convenience favours the applicant.
Criteria 1 and 2: A public legal duty to act owed to the applicant
[15] Subsection 9(2) of the Immigration Act, R.S.C. 1985, c. I-2, in force when the applicant submitted his permanent residence application, compels the respondent to assess the application. The application is now subject to the Immigration and Refugee Protection Act by operation of section 190 of this Act. The duties of the authorities under subsection 9(2) of the Immigration Act are the same as those described now in subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) (see Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189).
[16] In my view, subsection 11(1) of the IRPA imposes a legal duty on visa officers to process applications for permanent residence, and, in this case, the duty is owed to the applicant.
| 11. Application before entering Canada
(1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
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11. Visa et documents
(1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi.
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Criterion 3: There is a clear right to performance of that duty
[17] In my view, the applicant satisfies all the conditions precedent giving rise to a clear right to performance of the duty. He submitted his application, paid the required fees and always diligently answered requests for information. Through his counsel, the applicant also sent dozens of requests for information on the status of his file, which gave the respondent adequate time to perform his duties.
[18] The key matter to determine in ruling on the third criteria is whether the respondent refused to carry out his legal duty. The respondent, relying on Mark Parent's affidavit, argues that he never refused to act or process the application. According to case law from this Court, however, an unreasonable delay in rendering a decision is generally considered to be an implied refusal to perform the public legal duty: Dragan, supra, and Kalachnikov v. Canada (Minister of Citizenship and Immigration), 2003 FCT 777.
[19] In Kalachnikov, supra, this Court found that the same explanation given to the applicant in this case, that the background checks were pending, was unsatisfactory. In the case at bar, the applicant has been waiting for a little over four years for a decision to be made on his permanent residence application, and the respondent justifies this by arguing that the background checks, which are pending indefinitely, have to be done.
[20] What weakens this justification even more is the fact that, as the correspondence entered into evidence shows, the Canadian Security Intelligence Service informed the applicant that his check was finished and the results had been sent to the Minister on October 18, 2001. Regardless, Embassy officials still claimed in the responses they sent to the applicant on July 26, 2003, and March 1, 2004, that the background checks were not finished.
Reasonable time
[21] Since an unreasonable delay in the time it takes to render a decision is equivalent to an implied refusal to perform the duty to act, reasonable time is a fundamental issue that influences the determination of conditions precedent giving rise to the issuance of a writ of mandamus, which this Court is being asked to examine. In Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33 (T.D.), this Court set out the requirements that must be met for a delay to be deemed unreasonable:
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.
[22] With regard to the first requirement, the delay of over four years of the applicant's case is seven times longer than what he was originally told and four times longer than the usual processing time for applications submitted to the Embassy. Prima facie, it is obvious to me that this delay is longer than what is usually required by the process.
[23] Second, the applicant claims that, in co-operation with his counsel, he always diligently replied to the respondent's many requests for additional information. I am satisfied that the applicant was diligent and answered the respondent's enquiries within reasonable time frames. Despite the fact that part of the total delay may be attributable to the time the applicant needed to obtain and provide the requested information, the bulk of the delay cannot be attributed to him.
[24] As for the third requirement, the applicant argues that the respondent's justification for the processing delay in this case, that is, the pending background check, has repeatedly been deemed insufficient by this Court: Mohamed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1677, online: QL; Platonov v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1438, online: QL; Hanano v. Canada (Minister of Citizenship and Immigration), 2004 FC 998.
[25] I am aware that, as the respondent argues, paragraph 3(1)(h) of the IRPA provides for the protection of the health, safety and security of Canadians. Section 6 of the Immigration and Refugee Protection Regulations, SOR/2002-227, (the Regulations) provides that a foreign national may not enter Canada to remain on a permanent basis without first obtaining a permanent resident visa. With this in mind, I recognize that the respondent has the duty to ensure that potential immigrants do not fall under sections 34 to 39 of the IRPA, which set out inadmissibility criteria, and that the required checks vary depending on the case in question.
[26] Relying on an affidavit by Georges Boissé, Assistant Director of the Immigration Service at the Embassy, the respondent adds that the application in this case was referred to the Canadian Security Intelligence Service and other affiliated agencies for security checks. The visa officers therefore have no more control over the file, and a final decision cannot be made until these checks have been done.
[27] According to the respondent, there are security concerns in this case that have not been ruled out yet. The officer is therefore unable to make a decision on the applicant's application until the checks have been completed, which means that the applicant does not have a clear right to receive a decision. The respondent argues that adequate justification has been provided for the delay in this case. Security issues may justify a delay in the processing of an application for permanent residence: Chaudhry v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 213.
[28] Although I am aware of the decision this Court made in Aowad v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1581, online: QL, in which the judge found that a five-year delay before a decision is given was not ipso facto a reason to automatically issue a writ of mandamus when there were security concerns, I am not prepared to find that it applies in this case. The applicant in Aowad, supra, arrived in Canada with a forged passport; admitted to having used aliases; said he was a member of El Fath, the predecessor of the Palestinian Liberation Organization; and was subject to a conditional departure order. After obtaining refugee status, he submitted an application for landing in Canada, which initiated a background check. The Court held that sufficient justification had been given for the delays. In the case at bar, the applicant is seeking permanent residence, provided all the requested information and submitted reports indicating he does not have a criminal background. There is no reason to believe, contrary to the case in Aowad, supra, that security checks could take years. The applicant has been informed by a third party that the checks were done and received no justification from the respondent for why it is taking so long.
[29] Although I am prepared to accept that security issues may justify a delay in the processing of an application for permanent residence, the delay must still be reasonable. How reasonable the delay is depends on the circumstances in the case. Here, the delay is equivalent to four times the usual time taken to process applications submitted to the Embassy. In addition, the officers' responses to the applicant's numerous and repeated requests for follow-up were vague, simply mentioning that the background check was incomplete and that he had to be patient. He was informed in general terms that additional time was needed because of security concerns. Requests went unanswered on a few occasions. I feel that such a long delay must be justified by clear evidence. In this case, there is nothing to indicate that the respondent took special action to have the file expedited or completed. In fact, in July 2003, an Embassy officer informed the applicant that the background check was not completed and that it would take another six to nine months. I find that the respondent did not provide reasonable grounds to explain why it was taking so long to make a decision on the applicant's permanent residence application, which has been pending for more than four years now. In my view, there is no doubt that the applicant is entitled to performance of this duty.
Criterion 4: No other adequate remedy is available to the applicant
[30] I am satisfied that the applicant made every available effort to have his file processed. Everything failed. The respondent has been trying to justify the delay in making a decision for four years now by claiming that security checks are being done.
Criterion 5: The balance of convenience favours the applicant
[31] The applicant argues that he submitted his application on March 8, 2001, and he still does not have an answer. He has studied in Canada, two of his daughters are Canadian citizens and his family wants to live here because of current conditions in Libya. The applicant wants a decision to be made in his case as quickly as possible so that he and his family can move to Canada at the same time.
[32] The applicant contends that he has already paid the $5,125 fee to have his application reviewed. The respondent cashed the money a long time ago, but, according to the applicant, he should allocate the resources needed to assess the application. Furthermore, the applicant indicates that he transferred $350,000 to Quebec's investor program before he obtained his Quebec selection certificate, and he is concerned the transfer was futile, since he could have made this money grow over the years.
[33] I am aware of the respondent's duties, including that of ensuring potential immigrants are not described in sections 34 to 39 of the IRPA, which list inadmissibility criteria. I also recognize that the required checks vary from case to case. Nevertheless, given the unreasonable delay in this case and the lack of justification, I am satisfied that the balance of convenience clearly favours the applicant.
[34] The conditions precedent for the issuance of a writ of mandamus have been met in this case. Processing of the applicant's permanent residence application, which has been stagnant for four years, has been undermined by an unreasonable delay that has not been sufficiently justified.
CONCLUSION
[35] For the above reasons, the application for judicial review is granted.
COSTS
[36] The applicant is claiming costs. There must be special reasons to award costs in judicial reviews of immigration cases: section 22 of the Federal Court Immigration and Refugee Protection Rules, SOR/98-325. There are special reasons in this case: an unreasonable delay and a lack of reasonable justification for the delay. Under the circumstances, I award party-and-party costs, to be assessed in accordance with Column III of Tariff B under the Court's Rules.
[37] The parties have had an opportunity to submit a serious question of general importance, as provided for by paragraph 74(d) of the IRPA. They have not done so. No serious question of general importance shall be certified.
"Edmond P. Blanchard"
Ottawa, Ontario
May 30, 2005
Certified true translation
Jason Oettel
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