Date: 20100625
Docket: IMM-6241-09
Citation: 2010 FC 697
Ottawa, Ontario, June 25,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
MOHSEN
ESMAEILI-TARKI
Applicant
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) for an order for mandamus
compelling the Respondent to make a decision regarding the Applicant’s
application for ministerial relief pursuant to subsection 34(2) of the Act.
[2]
The
parties agree that the style of cause be changed so that the Minister of Public
Safety and Emergency Preparedness be named as the Respondent (the Minister). The
style of cause is amended accordingly.
[3]
The
relevant facts are not in dispute and are as follows. The Applicant, Mohsen
Esmaeili-Tarki, is a citizen of Iran who was declared a
Convention Refugee in Canada on January 5, 1998. He applied for
permanent resident status on February 28, 1999. The Applicant was found to be
inadmissible by reason of his former membership in an organization for which
there are reasonable grounds to believe had engaged in acts of terrorism – the Mujaheddin-E-Khalq
(MEK).
[4]
He
subsequently filed an application for ministerial relief pursuant to subsection
34(2) of the Act which provides that "[t]he matters referred to in
subsection (1) do not constitute inadmissibility in respect of a permanent
resident or a foreign national who satisfies the Minister that their presence
in Canada would not be detrimental to the national interest." The Minister
may not delegate authority with respect to subsection 34(2). The ministerial
exemption power is non-delegable.
[5]
The
Applicant attended an interview in conjunction with that request and, on July
24, 2001, he was notified that a recommendation for favourable consideration of
his application would be made. On March 17, 2004, he was notified that his
request was refused, and therefore, his application for permanent residence was
denied. That decision was set aside by this Court on April 15, 2005 as the
reasons provided were found to be insufficient. The decision was referred back
to the Minister for redetermination (Esmaeili-Tarki v. Canada (Minister of
Citizenship and Immigration), 2005 FC 509, [2005] F.C.J. No. 633).
[6]
On
December 22, 2007, the Applicant received a copy of a briefing note and other
documents that were to be reviewed by the Minister in making the decision on
the requested exemption. Submissions were made in response and since that time
there has been no further information with regard to the decision.
[7]
On
July 30, 2009, the Applicant contacted the Minister asking that his application
be processed and a decision rendered. The response received from the
Counter-Terrorism Section, which is dated August 5, 2009, stated that the
Manager had been informed that the application was in the redrafting process
and that no timeline could be provided as to the completion of the draft
recommendation.
[8]
The
Applicant seeks an order in mandamus pursuant to paragraph 18.1(1)(a) of
the Federal Courts Act, R.S.C. 1985, c. F-7. The Court must be satisfied
of the following conditions before a mandamus is issued:
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:
(a) in exercising a discretion, the
decision-maker must not act in a manner which can be characterized as
"unfair", "oppressive" or demonstrate "flagrant
impropriety" or "bad faith";
(b) mandamus is unavailable if the
decision-maker's discretion is characterized as being "unqualified",
"absolute", "permissive" or "unfettered";
(c) in the exercise of a
"fettered" discretion, the decision-maker must act upon
"relevant", as opposed to "irrelevant", considerations;
(d) mandamus is unavailable to
compel the exercise of a "fettered discretion" in a particular way;
and
(e) mandamus is only available
when the decision-maker's discretion is "spent"; i.e., the applicant
has a vested right to the performance of the duty.
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.
(Apotex Inc. v. Canada (Attorney
General), [1994] 1 F.C. 742 (F.C.A.))
[9]
With
respect to the requirements above, the Respondent does not contest the first
two. The remaining applicable requirements are at issue.
Clear right to performance
[10]
The
Applicant has provided all of the necessary submissions and satisfied the
conditions precedent. I am satisfied that there has been an unreasonable delay
in this case. In order for there to be a finding that the delay is
unreasonable, it must be shown that the delay in question has been longer than
the nature of the process requires, prima facie; the applicant and his
counsel are not responsible for the delay; and the authority responsible for
the delay has not provided satisfactory justification (Conille v. Canada
(Minister of Citizenship and Immigration), [1999] 2 F.C. 33 (F.C.T.D)).
[11]
In
determining whether or not a delay is excessive, the facts in every case must
be considered. Determinations made in other cases may provide guidance in this
regard (Mohamed v. Canada (Minister of Citizenship and Immigration)
(2000), 195 F.T.R. 137 (F.C.T.D.); Hanano v. Canada (Minister of
Citizenship and Immigration), 2004 FC 998, 257 F.T.R. 66 at para. 15).
[12]
In
Hanano at paragraph 15, the following review is provided:
However, determinations made by my
colleagues in other cases provide guidance in this regard. In Bhatnager, a
delay of 4 1/2 years was found to be unreasonable. In Mohamed, supra, a delay
of 4 years in waiting for a security clearance for landing of a Convention
refugee was found to be longer than prima facie required. In Platonov v. Canada
(Minister of Citizenship and Immigration) (2000), 192 F.T.R. 260 (T.D.) a delay
of slightly over two years, after provisional approval, spent in waiting for
security checks on former business associates was considered excessive. In
Kalachnikov v. Canada (Minister of Citizenship and Immigration) (2003), 236
F.T.R. 142 (T.D.), a delay of approximately 3 years in processing a visa application
was considered unreasonable and unjustified when the estimated processing time
was 14 months. In Conille, supra, the delay of 3 years waiting for a CSIS
investigation to be completed before citizenship was granted was found to be
unreasonable. In Dragan, supra, delays within a range of 2 to 3 years
were found to be unreasonable and mandamus issued.
[13]
The
Respondent relies on the affidavit of Michelle Barrette, Senior Program Officer
with the Canada Border Services Agency (CBSA) Ministerial Relief Unit, dated
April 30, 2010, where she states that a new recommendation in this case has
been prepared and reviewed and, if the revisions and required reviews proceed
within normal timeframes, the recommendation should be disclosed to the
Applicant for comment within six to eight weeks. Relying on the decision in Rouleau
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 602, 252 F.T.R. 309, the
Respondent submits that these recent steps render the order of mandamus
inappropriate. However, in that case, the Minister actually issued the report that
would have been subject to the order; that is not the case here.
[14]
The
Respondent argues also that the delay is not unreasonable if one considers the
numerous and varied responsibilities of the Minister who cannot delegate his
decision making power. He further submits that the entire process has been
hampered by an institutional reorganisation and that it has not taken longer
than required considering the many levels of assessment and review involved.
[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.
No other adequate remedy
[16]
There
is no other remedy available to the Applicant. The recourse suggested by the
Respondent to apply for a waiver on humanitarian and compassionate grounds does
not address the duty in question here which is that of the Minister to provide
a decision.
Balance of convenience
[17]
In
my view, while the balance of convenience favours the Applicant because his
lack of status presents significant obstacles for him, the Respondent also
raises valid concerns that should be addressed.
[18]
The
Respondent alleges that the waiving of inadmissibility on security grounds
requires careful consideration and the weighing of multiple factors by the
Minister. He urges that requiring a decision to be made in a set amount of time
could lead to the Applicant’s participatory rights being compromised. I am
aware that it is important that the Applicant be allowed to participate fully
in the evaluation of his assessment and that national security concerns are not
to be taken lightly. Nevertheless, I believe that my decision can address these
concerns by allowing the Respondent until October 31, 2010 in order to allow
the Minister to render his decision.
[19]
The Applicant
has asked for costs on this judicial review. I am satisfied that the Applicant
has demonstrated special reasons as required by Rule 22 of the Federal Court
Immigration and Refugee Protection Rules, SOR/93-22 to obtain costs.
[20]
In his further memorandum of argument, the Respondent
asks the court to address a motion seeking to protect certain information from
disclosure on the basis that its release would injure national security or the
safety of any persons. That motion was adjourned sine die by Lutfy CJ. Since
this motion has already been adjudicated upon by the Federal Court, I do not
have the jurisdiction to amend or vary that Order.
[21]
Neither
party has submitted a question for certification nor does one arise.
JUDGMENT
THIS COURT ORDERS that the Respondent render a decision on the Applicant’s
application no later than October 31, 2010. Costs are awarded to the Applicant
in a lump sum of $2,500. No question is certified.
“Michel
Beaudry”
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