Date: 20121218
Docket:
T-1780-11
Citation:
2012 FC 1488
Ottawa, Ontario, December 18, 2012
PRESENT: The Honourable Mr.
Justice Phelan
BETWEEN:
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NASSER ALI KHAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant has many problems with this judicial review for a mandamus order, not
the least of which is that if he returns to Canada, he will formally lose his
permanent resident status. If he loses his permanent resident status, he cannot
become a citizen – the very point of this request for mandamus. It is
reminiscent of the old ditty “oh what a tangled web we weave when first we
practice to deceive”. This is a judicial review for an order of mandamus
directing the Respondent to approve the Applicant’s citizenship application.
II. BACKGROUND
[2]
The
Applicant, a citizen of Saudi Arabia, where he presently resides, became a
permanent resident of Canada on January 7, 2001. His permanent resident card
expired in April 2008.
[3]
He
applied for Canadian citizenship on August 15, 2004 and left the country
shortly thereafter. He has yet to return.
[4]
The
Respondent flagged the Applicant’s citizenship application because his
residential address was the office address of the immigration consultant
handling the Applicant’s application. This fact raised issues as to his real
place of residence.
[5]
On
January 17, 2007, the Respondent asked the Applicant to complete a Residence
Questionnaire. The unproven allegation is that the immigration consultant sent
it but that Citizenship and Immigration lost the Questionnaire somewhere in the
process. What is known is that the receipt of the Questionnaire was never
acknowledged nor did it appear in any file.
[6]
In
2008 counsel took over prosecution of this file and attempted to move it along
the regulatory chain. A status inquiry in 2008 was answered with reference to
the need for Immigration, RCMP and CSIS clearances.
[7]
A
further communication in 2008 that the Applicant filed the Residence
Questionnaire was met with a reply two years later that the Questionnaire was
not in the departmental file. A copy of the Questionnaire was immediately
filed. Two unreported absences from Canada were observed by officials.
[8]
In
May 2011, the Applicant’s counsel was advised that the file had gone to the Mississauga office. On November 1, 2011, the Applicant filed this mandamus application.
[9]
The
Respondent scheduled an interview for the Applicant in Canada in early 2012. The Applicant refused to attend in Canada because he had not renewed
his permanent resident card. An interview would have confirmed his loss of
permanent residence. The Applicant proposed alternatives to an “in-Canada”
interview but the Respondent continued to insist on the in-Canada interview. A
further interview was scheduled which the Applicant did not attend.
[10]
The
crux of the Applicant’s problem is that he has not complied with his residency
obligation as required by the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], s 28(1) and that an examination (interview) conducted
under s 28(2)(b)(ii) will confirm such non-compliance.
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28. (1) A permanent
resident must comply with a residency obligation with respect to every
five-year period.
(2)
The following provisions govern the residency obligation under subsection
(1):
…
(b) it is sufficient
for a permanent resident to demonstrate at examination
(i) if they have been a
permanent resident for less than five years, that they will be able to meet
the residency obligation in respect of the five-year period immediately after
they became a permanent resident;
(ii) if they have been a
permanent resident for five years or more, that they have met the residency
obligation in respect of the five-year period immediately before the
examination; and
…
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28. (1) L’obligation de
résidence est applicable à chaque période quinquennale.
(2)
Les dispositions suivantes régissent l’obligation de résidence :
…
b) il suffit au
résident permanent de prouver, lors du contrôle, qu’il se conformera à
l’obligation pour la période quinquennale suivant l’acquisition de son
statut, s’il est résident permanent depuis moins de cinq ans, et, dans le cas
contraire, qu’il s’y est conformé pour la période quinquennale précédant le
contrôle;
…
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III. ANALYSIS
[11]
Section
5(1) of the Citizenship Act, RSC, 1985, c C-29, provides the conditions
under which the Minister shall grant citizenship – permanent residence
status is one of the pre-conditions.
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5.
(1) The Minister shall grant citizenship to any person who
…
(c) is a permanent
resident within the meaning of subsection 2(1) of the Immigration and
Refugee Protection Act, and has, within the four years immediately
preceding the date of his or her application, accumulated at least three
years of residence in Canada calculated in the following manner:
(i) for every day during which
the person was resident in Canada before his lawful admission to Canada for
permanent residence the person shall be deemed to have accumulated one-half
of a day of residence, and
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5. (1) Le ministre
attribue la citoyenneté à toute personne qui, à la fois :
…
c) est un résident
permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la
protection des réfugiés et a, dans les quatre ans qui ont précédé la date
de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée
de sa résidence étant calculée de la manière suivante :
(i) un demi-jour pour chaque
jour de résidence au Canada avant son admission à titre de résident
permanent,
…
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Section 2(1) of IRPA defines
“permanent resident” to mean a person who has acquired permanent residence
status and “has not subsequently lost that status under section 46”. Section 46
of IRPA stipulates that a person loses permanent residence status “on a final
determination of a decision made outside of Canada that they have failed to
comply with the residency obligation under section 28”.
[12]
The
test for the grant of mandamus is set forth in Dragan v Canada (Minister of Citizenship and Immigration), 2003 FCT 211, [2003] 4 FC 189 (FC) at
para 39:
(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 the 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) No other adequate remedy is available to
the applicant.
(5) The order sought will be of some
practical value or effect.
(6) The Court in the
exercise of discretion finds no equitable bar to the relief sought.
(7) On a “balance of
convenience” an order in the nature of mandamus should issue.
[13]
The
Applicant contends that the delay in granting citizenship is the fault of the
Respondent because it lost the Questionnaire. However, the Applicant has
submitted no evidence that the Questionnaire was ever sent in by the consultant
as alleged. The simplest proof, an affidavit by the consultant or even an
explanation as to why the consultant could not provide an affidavit, is not
addressed.
[14]
In
attempting to attribute fault for delay entirely to the Respondent, the
Applicant ignores:
- that
the use of the consultant’s business address as his residence was misleading or
at the very least justified inquiry by the Respondent and explanation by the
Applicant.
- that
there is no evidence that the Questionnaire, required for the continued
processing of the Applicant’s citizenship application, was ever sent, much less
received, by the Respondent in 2007.
- that
the Applicant has refused to attend an examination which would have, in all
probability, resulted formally in his loss of permanent resident status.
[15]
As
to the criteria to be satisfied for an order of mandamus, the Court’s
conclusion on each in relation to the facts are:
(a) There
is a public legal duty to act but it is subject to compliance with certain
conditions. While the loss of permanent resident status has not occurred and
thus the Applicant’s case meets this criterion, it is of dubious merit given
the admitted failure to comply with the permanent residence obligations.
(b) The
public legal duty is owed to the Applicant if he could comply with the
conditions for citizenship.
(c) As
to the clear right to Ministerial performance of the duty, the Applicant does
not meet this criterion. He has not met the conditions precedent to performance
of the duty.
(d) While
there has been a demand for performance, the Applicant cannot satisfy the
factors of reasonable time for Ministerial performance and unreasonable delay.
The reasonable time to perform does not arise until the Applicant satisfies all
pre-conditions. Therefore, the Minister’s delay is not unreasonable.
(e) The
Applicant is correct to claim that mandamus is the only adequate remedy.
(f) There
is no question that if the other conditions for mandamus were met, such an
order would have practical effect.
(g) The
Applicant does not satisfy the absence of an equitable bar factor. The
Applicant has contributed to the delay by listing a questionable “residential”
address; by failing to establish that the Questionnaire was filed promptly;
and, by refusing to attend an examination at which his loss of permanent
residence would be exposed.
(h) The
balance of convenience favours the Minister for the reasons in (g) and because
an applicant for citizenship must be prepared to submit himself to due inquiry
in a manner reasonably required by the Minister. The Applicant’s refusal to
submit to an in-Canada examination is unreasonable.
IV. CONCLUSION
[16]
Therefore,
for all these reasons, the mandamus application is denied with costs to the
Respondent.
JUDGMENT
THIS
COURT’S JUDGMENT is that the mandamus application is denied with
costs to the Respondent.
“Michael L. Phelan”
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