Date: 20100721
Docket: IMM-6156-09
Citation: 2010 FC 767
Ottawa, Ontario, July 21, 2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
DIUBEL
SENCIO HECHAVARRIA
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, R.S. 2001, c. 27
(the Act) for Ministerial relief pursuant to s. 34(2) of the Act alleging that
there has been no decision made to process, consider, and grant or deny his
application. The applicant is also seeking an order of mandamus against
the Minister and its designated officers, to fully process, consider, and grant
or deny his application.
Factual background
[2]
The
applicant, Diubel Sencio Hechavarria, is a citizen of Cuba. On November
16, 2005, he married Cheryl Hixt, a Canadian citizen, in Cuba.
[3]
The
applicant and his wife applied for spousal sponsorship shortly thereafter, and
he applied for permanent residence in June 2006. During his interview with the
Visa Officer on March 29, 2007 at the Canadian Embassy in Cuba, the
applicant was questioned about his service with the Ministry of the Revolution
Armed Forces (MINFAR) in Cuba from August 1992 to June 1998. The applicant
alleged that he did not volunteer to join the military. He was conscripted to
serve. He was a low-level employee who never had any access to any classified
information. His responsibilities included listening to radio signals, which he
was ordered to record and pass on to his supervisors.
Decision
[4]
In
January 30, 2008, the Immigration Services (Embassy of Canada in Cuba) decided
that the applicant was inadmissible for a permanent resident visa under s.
34(1) f) of the Act. The reason for rejecting the applicant’s
application was his previous involvement with MINFAR.
[5]
On
August 7, 2008, the applicant filed an application for Ministerial Relief
pursuant to s. 34(2) of the Act on the basis that the applicant’s
presence in Canada would not be
detrimental to the national interest. The applicant has yet to receive a
response from the Minister.
Issues
[6]
The
following issues are raised in this application:
a.
Is
the delay in making the decision with respect to the application for
Ministerial relief unreasonable?
b.
In
the affirmative, is an order in the nature of mandamus the appropriate remedy?
Statutory Provisions
[7]
The
following provisions of the Act are applicable in these proceedings:
|
Security
34. (1) A
permanent resident or a foreign national is inadmissible on security grounds
for
(a) engaging in an act of espionage or an act of
subversion against a democratic government, institution or process as they
are understood in Canada;
(b) engaging in or instigating the subversion by
force of any government;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or
might endanger the lives or safety of persons in Canada; or
(f) being a member of an organization that there
are reasonable grounds to believe engages, has engaged or will engage in acts
referred to in paragraph (a), (b) or (c).
Exception
(2) The 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.
|
Sécurité
34.
(1) Emportent
interdiction de territoire pour raison de sécurité les faits suivants :
a) être l’auteur d’actes
d’espionnage ou se livrer à la subversion contre toute institution
démocratique, au sens où cette expression s’entend au Canada;
b) être l’instigateur ou
l’auteur d’actes visant au renversement d’un gouvernement par la force;
c) se livrer au terrorisme;
d) constituer un danger pour la
sécurité du Canada;
e) être l’auteur de tout acte de
violence susceptible de mettre en danger la vie ou la sécurité d’autrui au
Canada;
f) être membre d’une
organisation dont il y a des motifs raisonnables de croire qu’elle est, a été
ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).
Exception
(2)
Ces faits n’emportent pas interdiction de territoire pour le résident
permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne
serait nullement préjudiciable à l’intérêt national.
|
Standard of review
[8]
Section
34(2) provides a mechanism whereby a person who has been found to be
inadmissible under s. 34 of the Act on security grounds may be granted
permanent residence if he can satisfy the Minister that his presence in Canada is not
detrimental to the national interest.
[9]
This
Court in Naeem v. Canada (Minister of Citizenship and Immigration), 2007
FC 123, [2007] F.C.J.
No. 173
and
Miller v. Canada (Solicitor General), 2006 FC 912, [2006]
F.C.J. No. 1164, held that decisions refusing Ministerial relief are reviewed on
the standard of patent unreasonableness.
[10]
Since the Supreme Court decision in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the standard of patent unreasonableness was
discarded and the previous three standards of review were collapsed into two: correctness
and reasonableness. However, where there is existing jurisprudence identifying
the standard of review, that analysis need not be repeated.
[11]
In the decision Ramadan v. Canada (Minister
of Citizenship and Immigration), 2008 FC 1155, [2008]
F.C.J. No. 1435, at paras. 1 and 16, this Court
concluded that the standard of review for a decision regarding Ministerial
Relief is reasonableness. In analyzing the exception of Ministerial Relief,
Justice Zinn mentioned the following:
[1] It is the Minister's task to determine whether waiving an
inadmissibility restriction for a person who is otherwise inadmissible to Canada would be "detrimental
to the national interest". The Minister is uniquely placed to make such an
assessment. The Court's role is to satisfy the foreign national and the
Canadian public that the decision-making process that was followed was fair,
and that the decision, based on all of the evidence, was reasonable.
[…]
[16] This is a decision that implements or reflects broad public
policy. It is a decision where the Minister is obliged to strike a balance
between the interests of an applicant who wishes to obtain residency in order
to be reunited with his family, and the public interest in ensuring that the
national interest is not prejudiced by a favourable decision. The fact that it
is only the Minister, and not a delegate, who is granted this authority also
suggests that significant deference is due. Taking all of these factors into
account, there is no doubt that the Minister in making the decision at hand is
deserving of the highest degree of deference.
[12]
Therefore,
the standard of review in the case at bar is reasonableness.
Analysis
[13]
Mandamus is a discretionary
equitable remedy. It lies to compel the performance of a public legal duty which
a public authority refuses or neglects to perform although duly called upon to
do so. In Kalachnikov v. Canada (Minister of Citizenship and Immigration),
2003 FCT 777, [2003]
F.C.J. No. 1016, from paragraphs 11 to 13, Justice Snider
reviewed the requirements for mandamus in the immigration context:
The Test
for Mandamus
[11] Mandamus
is a discretionary, equitable remedy (Khalil v. Canada (Secretary of State), [1999] 4 F.C. 661
(C.A.)) subject to the following conditions
precedent.
1. There is a public duty to the applicant 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 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, e.g.
unreasonable delay; and
4. There is no other adequate remedy.
5. The "balance of convenience" favours the
applicant (Apotex Inc. v. Canada (A.G.), [1994] 1 F.C. 742
(C.A.), aff'd [1994] 3 S.C.R. 1100,
Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33
(T.D.)).
[12] In Conille, supra, [1999] 2 F.C. 33
(T.D.), Tremblay-Lamer J. set out three requirements at paragraph 23, that must
be met if a delay is to be considered 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.
[13] In Mohamed v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1677
(T.D.) (QL), Dawson J. cautioned at paragraph 15 that prior jurisprudence is
"not particularly helpful except for the purpose of outlining the
parameters within which the Court has issued an order in the nature of mandamus
where it has found an unusual delay which has not
been reasonably explained." Dawson J. granted the order for mandamus in
Mohamed, supra because of the length of the delay in completing the security
review and the lack of explanation for why the estimated six months to one year
processing time was exceeded. Dawson J. did not accept that the statement that
the delays had to do with security concerns was a satisfactory justification
for the fact that, after more than four years, the applicant's application for
landing was still outstanding.
[14]
The
applicant argues that no evidence with respect to the progress on processing
the application has been provided and, hence, the delay for the Minister to
make a decision is unreasonable.
[15]
Following a review of the evidence, the Court is rather
of the opinion that the applicant did not provide reasonable
time to the authorities to comply with its request. Indeed, 15 months have
passed between the time the applicant applied for ministerial relief under s.
34(2) of the Act (August 7, 2008) and the filing of the current application
(December 1, 2009).
[16]
The Court finds that the applicant is not being ignored and
his file is in progress. For instance, the documentary evidence contains a response
letter from the Minister of Public Safety and there are a number of telephone
conversations related to the status of the file. It is therefore difficult to
find an outright refusal to comply with the applicant’s demand. Given the
nature of the inadmissibility in this file - i.e. on security grounds,
reasonable time must be given to the authorities to complete their
investigation, review and analyze the facts of the case (Affidavits from Brett
Bush and Michelle Barrette).
[17]
At hearing before this Court, counsel for the applicant referred
to the following case: John Doe v. Canada
(Minister of Citizendhip & Immigration), 2006 FC 535, 54 Imm.
L.R. (3d) 212. In John Doe, the applicant came to Canada in
1984 and claimed refugee status which was granted to him in 1986. He then
applied for permanent residence. In 1998, officers raised some concerns of a
security nature. The applicant then made an application for a Ministerial
relief. After eight (8) years, no decision had been taken. This Court found
that there had been undue delay without reasonable explanation.
[18]
However,
in the present case, the John Doe decision cannot be of any assistance
to the applicant. Indeed, to this day, a total of much less than two (2) years
elapsed since the ministerial relief application has been filed in December
2009. The Court finds that the delay, given the facts of this case, is
reasonable and justifiable.
[19]
For all of these
reasons, while the Court sympathizes that the delay may be affecting the wife
of the applicant, the Court cannot grant an order of mandamus at this
time. The application is premature and hence not justified. The applicant has
not demonstrated, on a balance of convenience, that the requirements in order
to issue a mandamus are met. The application for judicial review is
therefore dismissed. No question was proposed for certification and
there is none in this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that :
1. This
application for judicial review be dismissed.
2. No question
of general importance is certified.
“Richard
Boivin”
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