Docket:
IMM-7038-11
Citation:
2012 FC 508
Ottawa, Ontario, May 2, 2012
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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AHMAD, RAUF
YASMIN, TAHIRA
MUMTAZ, AMBER
MUMTAZ, JAVARIA
MUMTAZ, BUSHRA
HAIDER, ALI
and
MUMTAZ, WARDA
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Applicants
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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
[1]
This is an application by Rauf Ahmad (the principal
applicant), Tahira Yasmin, Amber Mumtaz, Javaria Mumtaz, Bushra Mumtaz, Ali
Haider and Warda Mumtaz (together, the applicants), pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the
Act], for judicial review of the respondent’s failure to render a decision with
respect to the principal applicant’s application for Canadian permanent
residence for himself and his family. The applicants request an order in the
nature of mandamus requiring the respondent to render a final decision
on the applicants’ application.
I. Factual Background
[2]
The principal applicant fled Pakistan in June of 2005 and
claimed asylum in Canada. He successfully obtained refugee protection in Canada on April 11, 2006. He subsequently applied for permanent residence in July of 2006
for himself and for his family, who are still living in Pakistan. The principal applicant also included his “adopted son” on the application for
permanent residence.
[3]
On November 13, 2007, an Immigration officer advised the
principal applicant’s wife that her “adopted son” could not be considered a
dependant child as per section 2 of the Act. The applicants’ counsel requested
an extension of this delay until February 1, 2008, in order to consult a
Pakistani lawyer on the issue and provide the officer with additional information.
[4]
In August of 2008, the applicants filed further
representations with regard to the status of their “adopted son”.
[5]
On September 4, 2008, Citizenship and Immigration Canada
(CIC) notified the principal applicant that his “adopted son” could not be
considered a dependent child. However, CIC did not withdraw the “adopted son’s”
name from the application as it explains that it fell upon the shoulders of the
applicants to do so.
[6]
On June 3, 2009, the applicants sought further
clarification of CIC’s position.
[7]
On May 14, 2010, as the applicants had not received a
response concerning the status of their application for permanent residence, counsel
for the applicants filed for mandamus in the Federal Court. The
applicants’ application for mandamus failed to get leave on July 21,
2010.
[8]
On August 18, 2010, the principal applicant’s wife wrote to
the Canadian High Commission in Islamabad, Pakistan (the High Commission),
informing them that she wished to withdraw her “adopted son” from the
application for permanent residence.
[9]
One year later, on August 23, 2011, the applicants sent a
letter to the High Commission and asked for a decision to be made.
[10]
On August 24, 2011, the High Commission responded and
advised the applicants that their application was being processed and that it
was in queue for review by an Immigration officer. The High Commission
explained that the extended processing time was due to the “dynamics of the
application and the concerns associated with the application”.
[11]
On September 7, 2011, the applicants received a letter from
the High Commission that informed them that their “adopted son” had been
officially deleted from the application as he did not meet the definition of a
“dependant child” under the Act.
[12]
On September 23, 2011, the applicants wrote to the High
Commission again to inquire as to the status of their application. On October
1, 2011, the applicants then received a similar response as the letter of
August 24, 2011.
[13]
On November 1, 2011, the applicants received another letter
from the Deputy IPM of the Immigration Section of the High Commission, which
stated that “no decision has yet been made on the Applicant’s application.”
II. Issue
[14]
The sole issue to be decided is whether the applicants are
entitled to an order of mandamus with respect to their application for
permanent residence.
III. Pertinent Legislation
[15]
The following provision of the Immigration and Refugee
Protection Act applies in the case at hand:
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OBJECTIVES
AND APPLICATION
Objectives –
immigration
3. (1) The
objectives of this Act with respect to immigration are
[…]
(f)
to support, by means of consistent standards and prompt processing, the
attainment of immigration goals established by the Government of Canada in
consultation with the provinces;
[…]
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OBJET
DE LA LOI
Objet en
matière d’immigration
3. (1) En
matière d’immigration, la présente loi a pour objet :
…
f)
d’atteindre, par la prise de normes uniformes et l’application d’un
traitement efficace, les objectifs fixés pour l’immigration par le gouvernement
fédéral après consultation des provinces;
…
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IV. Analysis
[16]
The applicants underline the fact that paragraph 3(1)(f)
of the Act outlines the principle of “prompt processing”. The applicants submit
that an order of mandamus should issue as they have not received an
answer to their application for permanent residence for almost six (6) years.
The applicants allege that they do not understand the reasons why their
application has taken so long to process and they state that CIC should be able
to make a decision at this point. Alternatively, the applicants advance that
they should be informed of the reasons for the delay in the processing so that
they may address any concerns that CIC may have.
[17]
The criteria which an applicant must satisfy for the Court
to grant a mandamus relief are well known. They were outlined in the
case of Apotex Inc. v Canada (Attorney General) CA), [1994] 1 FC 742,
[1993] FCJ No 1098 [Apotex], affirmed by [1994] 3 S.C.R. 1100, at para 45:
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; and
(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 its discretion finds no equitable bar to the
relief sought; and
7.
On a “balance of convenience” an order in the nature of mandamus
should (or should not) issue.
[18]
Further, in the case of Conille v Canada (Minister of Citizenship and Immigration), [1999] 2 FC 33, 159 FTR 215 [Conille],
Justice Tremblay-Lamer observed that a delay in the performance of a statutory
obligation may be considered unreasonable if the following requirements are met
at para 23:
[23] …
(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.
[19]
The respondent notes that an order of mandamus is
not warranted in the case at bar as it appears that the applicants’ application
for permanent residence is now complete and they are presently in queue for
review by an Immigration officer. While the respondent concedes that the
processing of their application has taken a long time, the respondent affirms
that this delay was caused by CIC’s concerns about the legality of the adoption
of Mr. Ahmad’s “adopted son”.
[20]
However, the evidence demonstrates that the applicant’s
application for permanent residence, which included his family members residing
outside of Canada, was sent on July 24, 2006 (Tribunal Record pp. 362 and
following). It is, therefore, difficult for the Court to agree with the respondent
that the relevant date to consider in determining whether the mandamus
should issue is 2007 or 2010 or 2011. The Court also notes that there were a
number of inquiries from the applicants. Based on the evidence on record, the
Court finds that the relevant date is July 24, 2006. The application for
permanent residence has therefore been outstanding for nearly six (6) years and
the evidence demonstrates that the applicants have responded to the requests
made by the CIC. While the applicants “officially” withdrew their “adopted son”
from their application in 2010, the fact of the matter is that the respondent
was aware of the applicants’ intention – in a letter dated December 14, 2007 –
that the “adopted son” be removed from the file (Tribunal’s Record, pp. 218,
259).
[21]
In light of the parties’ submissions and the evidence, the
Court is satisfied that the test has been met and that an order of mandamus should
issue.
[22]
The Court recalls that an order of mandamus
is a discretionary equitable remedy and that each request for mandamus
turns on its own particular set of facts. Further, in light of the cases of Ogbewe
v Canada (Minister of Citizenship and Immigration) 2006 FC 77; [2006] FCJ
No 98; Bageerathan v Canada (Minister of Citizenship and Immigration),
2008 FC 599, [2008] FCJ No 750, Douze v Canada (Minister of Citizenship and
Immigration), 2010 FC 1337, [2010] FCJ No 1680, the Court is of the view
that the delay in question has become unreasonable and has not been adequately
justified by the respondent.
[23]
With respect to the time line, the Court is satisfied that,
in light of the submissions by both parties at hearing, a delay of 60 days is
in order.
[24]
The Court agrees with the parties that there is no serious
question of general importance for certification in this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The application is
granted;
2. The respondent is ordered to make a decision
and provide it to the applicants within 60 days of the Court’s decision;
3. No serious question of general importance is
certified;
4. No costs.
“Richard
Boivin”
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