Date: 20011017
Docket: IMM-448-01
Neutral Citation: 2001 FCT 1118
BETWEEN:
GURDIAL SINGH KANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application under section 82.1 of the Immigration Act (the "Act") for judicial review under section 18.1 of the Federal Court Act for the purpose of obtaining a writ of mandamus against the Minister and his designated officers for failure to act on the application for permanent residence within a reasonable period.
[2] On October 3, 2001, the respondent filed an application for leave to file a supplementary affidavit.
[3] At the beginning of the hearing the applicant informed the Court that he was not opposing the filing of this supplementary affidavit. I conclude, therefore, on this particular point that the respondent's motion is allowed without costs.
RELEVANT FACTS
[4] Gurdial Singh Kang is a citizen of India. He came to Canada in July 1995 and claimed refugee status on July 5, 1995. By a decision dated April 24, 1996, the Board determined that the applicant was a Convention refugee.
[5] The applicant then applied for permanent residence on July 25, 1996, for himself, his wife and his two children who were still outside the country.
[6] On June 9, 1997, a letter was sent to the applicant asking for a sample of his fingerprints, which were received on September 9, 1997.
[7] On October 23, 1997, the Montréal office of the Department of Citizenship and Immigration examined the possibility of applying to deprive the applicant of refugee status pursuant to the provisions of section 69.2(1) of the Act.
[8] On March 25, 1998, an officer of the Department of Citizenship and Immigration in Montréal determined that at that point there was not sufficient evidence to file such an application.
[9] On December 23, 1998, an original copy of the application for permanent residence was sent to the applicant so he could update his file for the purpose of obtaining the approval of the Canadian Security and Intelligence Service (the "CSIS").
[10] On August 6, 1999, the CSIS invited the applicant to report for an interview, which was held in Montréal on September 9, 1999.
[11] On April 10, 2000, the applicant's wife was interviewed by the Canadian immigration authorities in India.
[12] On October 23, 2000, the CSIS sent its report to the Canadian immigration authorities.
[13] On February 1, 2001, the applicant filed an application for judicial review requesting a writ of mandamus to force the respondent to provide a reply to the application for permanent residence, considering the delay since the filing of that application to be unreasonable.
[14] On March 6, 2001, Ms. Joanne Gorda sent an e-mail to Mr. Robert Gervais asking whether there was any objection to finalizing the applicant's file.
[15] On May 11, 2001, Ms. Sylvie Pelletier replied to Ms. Joanne Gorda:
[Translation] Not to grant landing to the claimant for there is a possibility that an application will be made to vacate the claimant's refugee status.
[16] Finally, referring us to the affidavit of Ms. Sandra Guilmette dated August 31, 2001, there was a possibility that an application would be filed with the Chair of the Refugee Board (the "Board") in the coming weeks under section 69.2(3) of the Act, which would seek to obtain a reversal of the decision concerning the applicant's refugee status on the basis that evidence existed that, if it had been known to the Refugee Division, could have resulted in a different determination.
RELEVANT LEGAL PROVISIONS
[17] Sections 46.04(1) and 46.04(6) of the Act read as follows:
| 46.04 (1) Any person who is determined by the Refugee Division to be a Convention refugee may, within the prescribed period, apply to an immigration officer for landing of that person and any dependant of that person, unless the Convention refugee is
(a) a permanent resident;
(b) a person who has been recognized by any country, other than Canada, as a Convention refugee and who, if removed from Canada, would be allowed to return to that country;
(c) a national or citizen of a country, other than the country that the person left, or outside of which the person remains, by reason of fear of persecution; or
(d) a person who has permanently resided in a country, other than the country that the person left, or outside of which the person remains, by reason of fear of persecution, and who, if removed from Canada, would be allowed to return to that country.
(6) An immigration officer to whom an application is made under subsection (1) shall render the decision on the application as soon as possible and shall send a written notice of the decision to the applicant.
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46.04 (1) La personne à qui le statut de réfugié au sens de la Convention est reconnu par la section du statut peut, dans le délai réglementaire, demander le droit d'établissement à un agent d'immigration pour elle-même et les personnes à sa charge, sauf si elle se trouve dans l'une des situations suivantes_:
a) elle est un résident permanent;
b) un autre pays lui a reconnu le statut de réfugié au sens de la Convention et elle serait, en cas de renvoi du Canada, autorisée à retourner dans ce pays;
c) elle a la nationalité ou la citoyenneté d'un autre pays que celui qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée;
d) elle a résidé en permanence dans un autre pays que celui qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée et elle serait, en cas de renvoi du Canada, autorisée à retourner dans ce pays.
(6) L'agent d'immigration rend sa décision le plus tôt possible et en avise par écrit l'intéressé.
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[18] It seems clear that the evidence gathered from the applicant's wife in India, which appears to conflict with some important parts of the applicant's statement to the Board, is a veritable cat among the pigeons when it comes to the applicant's file.
[19] I have no hesitation in acknowledging that the respondent was entitled to wonder about the applicant's right to obtain permanent residence if his refugee status had been obtained illegally.
[20] However, the criteria laid down under section 46.04 do not allow the respondent to reassess the merits of the refugee status that the applicant obtained from another body.
[21] It was completely legitimate for the respondent to conduct further verifications of the applicant's file, particularly with the CSIS, and this fully justifies a portion of the delay that was incurred.
[22] However, the respondent could have proceeded with the application for review of the refugee status file with the Board much sooner than he did.
[23] In fact, the Court was informed that the application for review of the Board's decision, although late, was filed in September 2001.
[24] The Court is entitled to wonder whether the interests of justice would be well served by the issuance of a writ of mandamus to force the respondent to make a decision on the application for permanent residence when the central pillar on which this application is based, the applicant's refugee status, is now the subject matter of a legal challenge.
[25] The Court must also consider the fact that if it were to find in favour of the applicant and to issue a writ of mandamus forcing the respondent to make a decision on permanent residence status, the respondent is not obliged to respond favourably to that application while the applicant's refugee status is being challenged before the Board.
[26] The respondent's counsel rightly argued that mandamus is a discretionary remedy even when all the conditions for obtaining it may exist.
[27] I have concluded, therefore, that although the preconditions for a favourable decision by the respondent on the application for permanent residence are prima facie present, to issue a writ of mandamus to force the respondent to make such a decision would not serve the interests of justice at this time.
[28] I should mention that I have no congratulations to convey to the respondent for having kept the applicant in ignorance as to the real reasons that prevented him from rendering a decision on the application for permanent residence, since those reasons would be known only when the respondent's reply to the application for judicial review in mandamus were filed.
[29] As the applicant's counsel conceded, it is possible that the applicant simply awaited the result of the application for reconsideration before the Board before filing an application for mandamus in the Federal Court.
[30] I have no hesitation whatsoever in thinking that the slowness with which the file was processed by the respondent is largely responsible for this proceeding, which now seems premature in the circumstances.
[31] I conclude, therefore, that this motion in mandamus must be dismissed because it is premature.
[32] Counsel have not submitted any question for certification.
[33] In view of the special circumstances of this matter and in view of Rule 22 of the Immigration Rules, 1993, the parties are invited to submit to me some written submissions concerning the possibility of awarding costs in this matter. The applicant shall file and serve his written submissions no later than October 29, 2001 and the respondent shall file and serve his written submissions no later than November 12, 2001.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 17, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-448-01
STYLE: GURDIAL SINGH KANG
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 9, 2001
REASONS FOR ORDER OF BLAIS J.
DATED: OCTOBER 17, 2001
APPEARANCES:
JEAN-FRANÇOIS BERTRAND FOR THE APPLICANT
MICHEL PÉPIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
BERTRAND, DESLAURIERS FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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