Date: 20110204
Docket: IMM-2789-10
Citation: 2011 FC 131
Ottawa, Ontario, February 4, 2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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SHAHIN KASHANI AGHDAM
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Shahin Kashani Aghdam
seeks an order of mandamus compelling the Minister of Public Safety and
Emergency Preparedness to make a decision in relation to her application for
Ministerial relief. For the reasons that follow, I am satisfied that mandamus
should issue.
Background
[2]
Ms. Aghdam is an
Iranian citizen who arrived in Canada in 1986. She claimed refugee protection
and her claim was subsequently determined to have a credible basis through the
refugee “backlog” program.
[3]
In 1992, Ms. Aghdam
applied for permanent residence. She was interviewed by the Canadian Security
Intelligence Service in 1993 and again in 1996 with respect to her membership
in the Mujahedin-e-Khalq (or “MEK”) - an organization now on the list of
entities associated with terrorism maintained by Public Safety Canada.
[4]
Ms. Aghdam was
advised in 2000 that her application for permanent residence could be refused
because of her membership in the MEK. She attended an interview with an
immigration officer in 2001. Ms. Aghdam says that the purpose of the interview
was to decide whether she should be granted Ministerial relief, and that the
Court should consider her application for Ministerial relief to have been filed
in 2001, in assessing whether there has been an undue delay in this matter.
[5]
I do not agree that
2001 is the relevant date to consider in determining whether mandamus should
issue. The relevant date is January, 2005.
[6]
In coming to this
conclusion, I note that there is no application for Ministerial relief from Ms.
Aghdam in the certified tribunal record from 2001. Ms. Aghdam did file a
written application for Ministerial relief under subsection 34(2) of the Immigration
and Refugee Protection Act in 2005. One wonders why she would have done
this, if she believed that she already had an application for Ministerial
relief outstanding from 2001.
[7]
Moreover, the
interview notes that she relies on to say that the clock should start ticking
in 2001 expressly state that she was ineligible for Ministerial relief under
the old Immigration Act. Ms. Aghdam was provided with these notes at the
time of the 2001 interview.
[8]
Ms. Aghdam was
interviewed in February of 2005 with respect to her application for Ministerial
relief. On September 10, 2008, she was provided with a copy of the Canadian
Border Service Agency’s briefing note to the Minister of Public Safety and
Emergency Preparedness recommending that her request be refused.
[9]
Ms. Aghdam provided
responding submissions two weeks later. Despite several requests from Ms.
Aghdam over the intervening two and a half years, no decision has been made in
relation to her application.
[10]
Shortly after Ms.
Aghdam commenced her application for mandamus, she was advised that she
would be provided with a “fairness disclosure” package containing a revised
Ministerial relief recommendation. This was provided to her earlier this week.
She has 15 days to respond to it, after which a final recommendation will be
made to the Minister.
[11]
Ms. Aghdam has been
living in Canada for 25 years, without permanent
residence status. She states that the uncertainty has been extremely stressful
for her, and has also had a negative impact on her ability to access health
care benefits. This is a particular concern for Ms. Aghdam, as she has been
diagnosed with breast cancer and also suffers from diabetes.
[12]
The respondent has
not provided an affidavit explaining the reasons for the delay in this matter.
The
Legal Test
[13]
As the Federal Court
of Appeal noted in Apotex Inc. v. Canada
(Attorney General),
[1994] 1 F.C. 742, in order to be entitled to mandamus, an applicant
must establish that:
1. There is 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 must have satisfied
all conditions precedent giving rise to the duty; and
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;
[…]
4. There
is no other adequate remedy;
5. The
order sought will be of some practical value or effect;
6. The
Court finds no equitable bar to the relief sought; and
7. On a balance of convenience, an
order in the nature of mandamus should issue.
[14]
In Conille v.
Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33, [1999]
F.C.J. No. 1553 (T.D.) three considerations were identified as relevant to the
question of whether a delay is unreasonable. These are:
1) The delay in question has
been longer than the nature of the process required, prima facie;
2) Neither the applicant nor
her counsel is responsible for the delay;
3) The authority responsible for the
delay has not provided satisfactory justification.
Analysis
[15]
I am satisfied that
the test has been met in this case.
[16]
Ms. Aghdam’s
application for Ministerial relief has now been outstanding for six years. The
issue is whether Ms. Aghdam has satisfied the Minister that it would not be
detrimental to the national interest to grant her relief from the
inadmissibility finding arising from her past involvement with the MEK. There
is no suggestion that there is any ongoing security investigation with respect
to Ms. Aghdam’s involvement with the MEK that is holding things up. Rather, it
appears that the delays are due to administrative challenges within the
Government.
[17]
I am satisfied that
the delay in processing Ms. Aghdam’s application for Ministerial relief has
become unreasonable. She had satisfied all conditions precedent giving rise to
the duty prior to commencing her application for mandamus. The fact that
her application appears to have prompted some recent action on her file should
not disentitle her to relief.
[18]
Consequently, an
Order will go directing the Minister of Public Safety and Emergency
Preparedness to make a decision in relation to Ms. Aghdam’s application for
Ministerial relief within 120 days of receipt of Ms. Aghdam’s submissions
responding to the “fairness disclosure” package provided to her this week.
Costs
[19]
Ms. Aghdam seeks her
costs of this application, which she estimates at $6,500, inclusive of HST and
disbursements. Costs are not ordinarily awarded in immigration proceedings in
this Court. Rule 22 of the Federal Courts Immigration and Refugee
Protection Rules provides that “No costs shall be awarded to or payable by
any party in respect of an application for leave, an application for judicial
review or an appeal under these Rules unless the Court, for special reasons, so
orders”.
[20]
This Court has found
there to be special reasons where, for example, one party has acted in a manner
that may be characterized as unfair, oppressive, improper or actuated by bad
faith: see Manivannan v. Canada (Minister of Citizenship and Immigration),
2008 FC 1392, [2008] F.C.J. No. 1754, at para. 51. That is not the situation
here. There is no evidence of any misconduct on the part of the respondent that
would justify such an order. Moreover, counsel for the respondent has been very
helpful in moving this matter forward.
[21]
However, this Court
has also considered undue delay in processing a claim to be a “special reason”
which would justify an award of costs: see, for example, Manivannan,
above, at para. 60; Singh v. Canada (Minister of Citizenship and
Immigration), 2005 FC
544, [2005] F.C.J. No. 669, at para. 24; Ben-Musa v. Canada (Minister of Citizenship and
Immigration), 2005 FC
764, [2005] F.C.J. No. 942, at para. 36.
[22]
I am satisfied that
special reasons exist in this case justifying an award of costs in Ms. Aghdam’s
favour. That said, there has been no conduct in this matter that requires the
sanction of an award of costs on a substantial indemnity or solicitor-client
basis. In the exercise of my discretion, I fix Ms. Aghdam’s costs at $3,500,
inclusive of HST and disbursements.
[23]
I agree with the
parties that there is no serious question of general importance for
certification in this case.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
The
application is granted, with costs fixed at $3,500. The Minister shall make a
decision with respect to Ms. Aghdam’s application for Ministerial relief within
120 days of the receipt of Ms. Aghdam’s submissions responding to the “fairness
disclosure” package.
“Anne
Mactavish”
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