Date: 20101230
Docket: IMM-1743-10
Citation: 2010 FC 1337
Ottawa, Ontario, December 30, 2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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PIERRE CHARLES DOUZE
MARGARETTE LUC DOUZE
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Applicants
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and
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THE MINISTERS OF CITIZENSHIP AND
IMMIGRATION AND PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application by Pierre Charles Douze (the “principal applicant”) and Margarette
Luc Douze (together, the “applicants”) made pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA],
for judicial review of the respondent ministers’ failure to render a decision
with respect to the principal applicant’s application for permanent residence
and ministerial relief. The applicants request an order in the nature of mandamus
requiring the respondent Minister of Public Safety and Emergency Preparedness
(MPS) to render a final decision as to the principal applicant’s request for
ministerial relief and, thereafter, requiring the respondent Minister of
Citizenship and Immigration (MCI) to render a final decision on the principal
applicant’s application for permanent residence.
BACKGROUND
[2]
The principal applicant, age 53, is a citizen of Haiti. His wife, age 45, began living in Canada on August 23, 2003 and became a Canadian citizen in June of
2008. They married on September 26, 1992 in Haiti
and have three children residing in Montreal with their mother and are all Canadian
citizens.
[3]
In
February of 2005, the principal applicant submitted an application for
permanent residence in the family class category, accompanied by sponsorship
from Mrs. Douze, to the MCI. It was received at the embassy in Port-au-Prince, Haiti at the end of March,
2005. On June 21, 2005 a Quebec Selection Certificate (QSC) was issued. On July
27, 2005 the principal applicant was interviewed by Canadian embassy officials
in Port-au-Prince.
[4]
In October
2005, the principal applicant’s file was sent to Ottawa for an opinion as to potential
inadmissibility under paragraph 35(1)(b) of the IRPA. The principal
applicant had worked as a justice of the peace in Haiti from 1991 to 1998. The Haitian
government regime, for specified periods during 1991 to 1994, was a designated
regime under paragraph 35(1)(b) of the IRPA for having been involved in
serious human rights abuses. An opinion as to the applicability of paragraph
35(1)(b) was not immediately forthcoming. In September of 2007, the embassy in Port-au-Prince followed up with the Ottawa office regarding the status
of the opinion. At the end of October 2007, the opinion was issued to the
effect that the principal applicant was a member of the class of inadmissible
persons listed in paragraph 35(1)(b) for having served as part of the Haitian
judiciary under a designated regime. His position in the Haitian judiciary gave
rise to the presumption that he had, or was capable of having, influence over
the designated government regime.
[5]
On
November 9, 2007, the applicants attended an interview with a visa officer in Haiti who informed them that the principal
applicant was inadmissible due to paragraph 35(1)(b) of the IRPA; they
were provided with a letter to that effect. The visa officer also indicated
that the principal applicant could apply, under subsection 35(2) of the IRPA,
to the MPS for relief. On January 29, 2008, the principal applicant filed a
subsection 35(2) request for ministerial relief. In March of 2008, immigration
officials in Haiti forwarded the request on to Canada Border Services Agency
(CBSA) officials in Ottawa. Along with the request, they
provided a case summary in which they indicated that there was no evidence to
suggest that the principal applicant was involved in the activities of the
designated regime. They indicated that he had refrained from his judicial
duties shortly after the military coup in October 1991 and had, in fact, been
arrested by that regime and detained for a period. The file was received by the
CBSA on March 14, 2008.
[6]
During the
months that followed, counsel for the applicants sent three letters to Case
Management at the Department of Citizenship and Immigration Canada (CIC)
requesting a status update. No response was provided. The applicants also
attempted to follow up via Mrs. Douze’s Member of Parliament (MP). Notes from
the Computer Assisted Immigration Processing System (CAIPS) indicate that the
MP was provided with a number of estimates in terms of anticipated processing
time for the request for ministerial relief. On May 30, 2008, the MP was told
not to expect a response before 6 to 9 months. Again on August 14, 2008, he was
told the same thing (i.e. another 6 to 9 months). On January 13, 2009, he was
informed that these types of decisions require at least 2 years to process.
Finally, a CAIPS note dated April 24, 2009, indicates that the MP was told the
request for ministerial relief would take another 2 years to process (i.e.
until April of 2011). In November of 2009, counsel filed an Access to
Information Request with the CBSA. On December 17, 2009, the CBSA disclosed the
requested information. There was no indication that any steps had been taken by
the CBSA with respect to the request for ministerial relief since it had
received the file on March 14, 2008. On January 18, 2010, counsel sent a letter
to the CBSA requesting that processing of the request be expedited.
[7]
On
February 4, 2010, counsel sent a “notice of default” to the CBSA informing it
that the applicants considered the delay in processing to be unacceptable. On
March 17, 2010, the CIC sent counsel a note regarding the status of the request
for ministerial relief. It indicated that the “relief application [was] still
being processed,” and that it could be “a long and complex procedure.” It assured
counsel that the “CBSA [was] working diligently to process” the application “as
quickly as possible”.
[8]
On March
29, 2010, the applicants filed the application that is before the Court now.
They requested an order in the nature of mandamus requiring the
respondent MPS to render a final decision on the request for ministerial relief
and, thereafter, requiring the respondent MCI to render a final decision on the
application for permanent residence.
[9]
On
September 13, 2010, Ms. Michelle Barrette, a Senior Program Officer with the
CBSA Ministerial Relief Unit submitted an affidavit with regards to these
proceedings. She indicated that the CBSA underwent a re-organization on April
1, 2010 which involved moving the principal applicant’s request from a pool of
15 cases to an inventory of over 225 cases. Further, Ms. Barrette indicated
that the assessment of a request for ministerial relief can take, on average, 5
to 10 years. This, she explained, is because of the complex nature of such
determinations and because the Minister must personally make the ultimate
decision. Ms. Barrette indicated that a recommendation had already been drafted
with respect to the principal applicant’s request. She pointed to the following
steps that were still outstanding: provision of the draft recommendation to the
principal applicant for feedback, review of any submissions made by the
principal applicant in response, incorporation of those submissions into the
draft recommendation, approval of the draft recommendation by the President of
the CBSA, and, finally, rendering of the ultimate decision by the MPS.
[10]
Ms.
Barrette was cross-examined on September 22, 2010. She indicated that the draft
recommendation was completed on February 5, 2010 and although she could not
provide a firm time frame, she indicated that as a general estimate, it might
be presented to the Minister some time between February 2011 and February 2013.
[11]
Although
the respondent MPS had provided a Certified Tribunal Record (CTR) in August of
2010, the applicants argued that it was incomplete, in part because it did not
contain the draft recommendation discussed by Ms. Barrette. On October 1, 2010
the applicants filed a motion for an order compelling the respondent MPS to
produce a more complete CTR pursuant to the requirements set out in Rule 17 of
the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22.
On appeal, the Court found that the MPS was not required to disclose the draft
recommendation, but was required to disclose all undisclosed case notes and
correspondence related to the principal applicant’s ministerial relief request.
On October 28, 2010, the respondent MPS disclosed additional correspondence and
notes relating to the processing of the principal applicant’s request.
ISSUES
[12]
The
following preliminary issues were raised by the respondents with respect to the
application for judicial review:
a) Does Mrs. Douze have
standing in this application?
b) Is the application
improperly constituted because more than one
mandamus order is
sought?
[13]
The main
issue to be decided with respect to the application for judicial review is:
c) Is the principal applicant
entitled to a mandamus order with respect to the
pending request for
ministerial relief?
ANALYSIS
a) Does Mrs. Douze have standing
in this application?
[14]
The
respondents request that Mrs. Douze be removed as a party since she is not the
object of the paragraph 35(1)(b) decision and is not the applicant for
ministerial relief under subsection 35(2). The applicants argue that Mrs. Douze
should not be removed as a party since she is “directly affected by the matter
in respect of which relief is sought,” and thus has standing by virtue of
subsection 18.1(1) of the Federal Courts Act, R.S. 1985, c. F-7 [FCA].
[15]
The test
for determining whether a party is “directly affected” within the meaning of
subsection 18.1(1) of the FCA is whether the matter at issue directly
affects the party’s rights, imposes legal obligations on it, or prejudicially
affects it directly (Rothmans of Pall Mall Canada Ltd. v. Canada (Minister
of National Revenue), [1976] 2 F.C. 500, 67 D.L.R. (3d) 505 at para. 13; Apotex
Inc. v. Canada, 2007 FC 232 at para. 20, 155 A.C.W.S. (3d) 1080; League
for Human Rights of B'Nai Brith Canada v. Canada, 2008 FC 732 at para. 24,
334 F.T.R. 63).
[16]
First, the
applicants argue that the respondents’ failure to render a decision directly
affects Mrs. Douze’s legal right to sponsor her husband as set out in section
13 of the IRPA.
[17]
This
Court, in Carson v. Canada (Minister of Citizenship and
Immigration) (1995),
95 F.T.R. 137, 55 A.C.W.S. (3d) 389 (F.C.T.D.), considered a similar issue. The
question was whether a Canadian citizen, who had sponsored her husband in
applying for landing in Canada based on humanitarian and
compassionate grounds, had standing to bring a judicial review application
regarding an immigration officer’s negative determination. The Court found that
she did not. It held, at paragraph 4:
While Mrs. Carson has an interest in this
proceeding, in that she is Mr. Carson's sponsor for landing in Canada and she was interviewed as
part of the marriage interview involving the H&C determination, these facts
are insufficient to give her standing in this judicial review. Mrs. Carson is a
Canadian citizen and does not require any exemption whatsoever from the
Immigration Act or regulations. Moreover, whether she has standing or not has
no impact whatsoever on the ultimate issue in this matter. Accordingly, with
respect to this proceeding, the applicant, Tonya Carson, is struck as a party.
Similarly, I find that the mere fact that Mrs. Douze is the
principal applicant’s sponsor is insufficient to give her standing in this
judicial review.
[18]
Second,
the applicants argue that Mrs. Douze has standing because she has been
prejudicially affected by the respondents’ failure to render a decision, in
that the delay in processing forces her to live apart from her husband, and
forces her to raise her children alone. I find that this impact, while
substantial, is only indirect. In Wu v. Canada (Minister of Citizenship and Immigration), 183 F.T.R. 309, 4 Imm. L.R.
(3d) 145 [Wu], Justice Gibson considered whether a six year old boy
could be a party to the judicial review of a negative determination of his
parents’ application for landing from within Canada on humanitarian and
compassionate grounds. The Court found that he could not. It indicated at
paragraph 15:
The applicant Kevin Wu is a Canadian
citizen and is at no risk of deportation. The rejection of his parents' H&C
application affects him only indirectly, albeit that the indirect effects could
be very dramatic. I am satisfied that he has no standing on this application.
Similarly, I find that the fact that Mrs. Douze and her
children continue to live apart from the principal applicant is an indirect result
of the respondents’ delay in processing the request for ministerial relief.
[19]
I am
satisfied that Mrs. Douze has no standing in this matter. Therefore, it will be
ordered that the applicant Margarette Luc Douze be struck from the style of
cause
b) Is the application improperly
constituted because more than one mandamus order is sought?
[20]
The
applicants are seeking not only an order in the nature of mandamus
requiring the respondent MPS to render a final decision with respect to the
principal applicant’s request for ministerial relief, but also an order
in the nature of mandamus requiring the respondent MCI, after the MPS
has made its decision, to render a final decision regarding the principal
applicant’s overall permanent residence application.
[21]
The respondents
argue that this violates Rule 302 of the FCR which states:
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Limited to
single order
302. Unless
the Court orders otherwise, an application for judicial review shall be
limited to a single order in respect of which relief is sought.
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Limites
302.
Sauf ordonnance contraire de la Cour, la demande de contrôle judiciaire ne
peut porter que sur une seule ordonnance pour laquelle une réparation est
demandée.
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[22]
They
submit that Rule 302 does not allow an applicant to seek the review of two
decisions, made by two different decision makers, in a single application. The
MCI’s decision as to inadmissibility under paragraph 35(1)(b) of the IRPA is
completely separate from the decision as to ministerial relief under subsection
35(2) and that the applicants are essentially asking the Court to issue mandamus
orders in respect of both.
[23]
The
applicants reply that the respondents have mischaracterized their application.
They are primarily seeking an order enjoining the MPS to make a decision on the
principal applicant’s request for ministerial relief under subsection 35(2).
The order enjoining the MCI to finalize the permanent residence application is
only ancillary and is not related to the MCI’s decision with respect to
inadmissibility under paragraph 35(1)(b). The applicants point out that the s.
35(1)(b) inadmissibility decision has already been made (i.e. in November of
2007) and, as such, it would make no sense for them to seek a mandamus order
requiring the MCI to render that decision again. Instead, the ancillary order
is requested to ensure that the MCI makes the overall permanent residence
determination within a fixed period of time after the request for ministerial
relief is determined. I disagree.
[24]
I find
that the ‘ancillary’ mandamus order requested by the applicants cannot
possibly issue. The criteria set out in Apotex Inc. v. Canada (Attorney
General) (1993), [1994] 1 F.C. 742, 44 A.C.W.S. (3d) 349 (C.A.) [Apotex] are clearly not
satisfied. The MCI does not currently owe the principal applicant a public
legal duty to act. In November of 2008, the MCI discharged its responsibilities
towards the principal applicant by finding that he was inadmissible. Before any
duty can be said to be re-engaged, the respondent MPS must first render a
decision regarding the ministerial relief. After the MPS has decided the
request for ministerial relief, if the MCI takes an unreasonable amount of time
to make a decision as to permanent residence, then the principal
applicant would be able to apply to this Court for an order in the nature of mandamus
against the MCI.
[25]
Thus, I
will focus on the “principal relief” sought by the applicants, i.e. the mandamus
order with respect to the request for ministerial relief.
c) Is the principal applicant
entitled to a mandamus order with respect to the pending request for
ministerial relief?
[26]
For this
Court to issue an order in the nature of mandamus, the following
criteria, as set out by Justice Robertson in Apotex, above at
para. 45, must be satisfied:
1. There must be a public
legal duty to act…
2. The duty must be 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 (i) a prior demand for
performance of the duty; (ii) a reasonable time to comply with the demand
unless refused outright; and (iii) a subsequent refusal which can be either
expressed or implied, e.g. unreasonable delay…
4. Where the duty sought to be
enforced is discretionary, the following rules apply: [omitted]
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 (or should not)
issue.
[27]
The
respondent MPS focuses its argument mainly on the third criterion. He argues
that, presently, there is no right to a decision on the principal applicant’s
request for ministerial relief because the delay experienced, thus far, has not
been unreasonable. The affidavit evidence submitted by Ms. Barrette shows that
ministerial relief requests generally take between five and ten years to
process because they involve complex assessment and require the Minister’s
personal involvement. In this case, the request for ministerial relief was
submitted to the CBSA in March of 2008, which is less than three years ago. During
this time, the CBSA has been working diligently on the principal applicant’s
request and has, in fact, already drafted a recommendation. At the hearing, the
respondent’s counsel further indicated that the process could be finalized, in
all likelihood, by February of 2011.
[28]
Three
requirements must be met in order for a delay to be considered unreasonable:
(1) the delay in question must have been longer than the nature of the process
required, prima facie; (2) the applicant and his counsel must not be
responsible for the delay; and (3) the authority responsible for the delay must
not have provided a satisfactory justification (Conille v. Canada (Minister
of Citizenship and Immigration), [1999] 2 F.C. 33 at para. 23; 87 A.C.W.S.
(3d) 24 (T.D.) [Conille]). In this case, I am satisfied that there is no
issue with respect to the second requirement.
[29]
Before
considering the first and third requirements, it is important to be clear as to
what “the delay in question” is in this case. It would be incorrect to consider
the delay to have started when the principal applicant first submitted his
application for permanent residence. The decision as to inadmissibility has
already been made, and it was made by a different decision-maker. Instead, the
appropriate period to consider is, as the respondents suggest, the period
starting when the request for ministerial relief was initially received by the
CBSA (i.e. March of 2008) until now. That is a period of approximately 2 years
and 9 months. Is this delay prima facie longer than the nature of the
process requires?
[30]
In Esmaeili-Tarki
v. Canada (Minister of Public Safety
and Emergency Preparedness),
2010 FC 697 [Esmaeili-Tarki], my colleague, Justice Michel Beaudry found
that a mandamus order should issue against the MPS. The applicant
applied for ministerial relief in 1999 and was denied that relief in 2004. That
decision, however, was set aside in 2005 and the matter was sent back to the
MPS for re-determination. In August of 2009, the applicant was informed that
his application was in the redrafting stage and no timeline could be provided.
As in this case, the MPS relied on an affidavit submitted by Ms. Barrette. She
indicated a draft recommendation had been prepared and would be disclosed to
the applicant for comment within six to eight weeks. As in this case, the MPS
argued that the delay was not unreasonable for a number of reasons: a) since
the decision had to be made by the Minister, who had a wide range of other
responsibilities, b) many levels of assessment and review were involved, and c)
the process had been hampered by an institutional reorganization. Justice
Beaudry found the delay was prima facie unreasonable and had not been
adequately justified. He wrote, at paragraph 15:
I do not accept these
arguments as justifying the delay. In light of the facts that more than five
years have elapsed since the matter was sent back to the Minister for
redetermination and the Minister had the benefit of the previously prepared
briefing note. Also, a briefing note was sent to the Applicant for comments in
2007 and there have been no further follow ups with him. There is no way to
know that there won't be further delays even if the new recommendation is
communicated to the Applicant in the timeline proposed in Michelle Barrette's
affidavit. There is no evidence that there are any pending investigations
regarding the Applicant. The Applicant has cooperated in all aspects of the
process.
[31]
In the
current case, almost three years have passed since the principal applicant
first submitted his request for ministerial relief. Nothing of any significance
was accomplished during the first 22 months. At the beginning of 2010 ─
and then only because of the insistence of counsel ─ the respondent MPS
undertook efforts to complete a draft recommendation. The draft was completed
by February of 2010. Unfortunately, since that time, no further steps of
significance appear to have been taken. It is interesting to note that Ms.
Barrette indicated in the Esmaeili-Tarki case, above, that a draft
recommendation had been completed for the applicant in that case, and that it
would only take six to eight weeks for it to be disclosed for comment.
Although the draft recommendation in the current case has been ready for almost
a year, and despite the fact that there is no evidence that further
investigation is required, the principal applicant has yet to receive it for
comment.
[32]
The
ever-expanding time estimates provided by the respondent MPS are also revealing
as to the reasonableness of the delay. The notes associated with the principal
applicant’s file indicate that the CBSA provided Mrs. Douze’s MP with the
following processing time estimates throughout 2008 and 2009: (a) on May 30,
2008: 6 to 9 months, (b) on August 14, 2008: another 6 to 9 months, (c) on
January 13, 2009: 2 years, and (d) on April 24, 2009: another 2 years. The
final estimate would see the decision being made by April of 2011 ─ which
seems now, according to counsel’s submissions, to have shifted to February of
2011.
[33]
Ultimately,
I find that the delay in this case is prima facie unreasonable and has
not been adequately justified by the respondent MPS. The same explanations as
were provided in Esmaeili-Tarki, above, have been advanced by the
respondent MPS in this case. Neither the fact that the ultimate decision must
be made by the Minister, nor the fact that multiple levels of assessment are
involved, explain why essentially nothing was done on the principal applicant’s
file for almost two years, and why, after having completed a draft
recommendation almost a year ago, that draft has not been provided to the
applicant for feedback. While institutional reorganization might explain some
delay, it is certainly insufficient to explain the magnitude of delay at issue
here.
[34]
As such,
the requirements from Conille, above, have been met; the delay at
issue is unreasonable. Since I find that none of the other criteria from Apotex,
above, are in doubt, an order in the nature of mandamus requiring the
respondent MPS to process the principal applicant’s request for ministerial
relief is issued. The respondent MPS shall process the principal applicant’s
request for ministerial relief and provide him with a decision within three (3)
months of this Order.
JUDGMENT
THIS COURT ORDERS that:
·
Margarette
Luc Douze be struck from the style of cause.
·
An Order in the
nature of mandamus requiring the respondent MPS to process the principal
applicant’s request for ministerial relief is issued. The respondent MPS shall
process the principal applicant’s request for ministerial relief and provide
him with a decision within three (3) months of this Order.
“Danièle
Tremblay-Lamer”
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