Date: 20110131
Docket: IMM-2104-10
Citation: 2011 FC 108
Ottawa, Ontario, January 31,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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SONAM DHONDUP, TENZIN YONTEN
AND TENZIN YESHI
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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 Sonam Dhondup (the Principal Applicant, PA), Tenzin Yonten
and Tenzin Yeshi (together, the Applicants) made pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), for
judicial review of the Respondent Minister’s failure to render a decision with
respect to Mr. Dhondup’s application to sponsor his de facto dependent
children, the applicants Tenzin Yonten and Tenzin Yeshi, on humanitarian and
compassionate (H&C) grounds for permanent residence in Canada.
[2]
The
Applicants request an order for a writ of mandamus requiring the
Respondent to make a decision regarding the PA, Sonam Dhondup’s, application to
sponsor his de facto dependants Tenzin Yonten and Tenzin Yeshi, on
H&C grounds pursuant to subsection 25(1) of the IRPA, with the information
available before them, and to respond to the PA’s request to issue Temporary
Resident Permits (TRP’s) to Tenzin Yonten and Tenzin Yeshi, pursuant to
subsection 24(1) of the IRPA.
[3]
Based
on the reasons below, this application is allowed.
I. Background
A. Factual
Background
[4]
The
PA, Sonam Dhondup, is an ethnic Tibetan who lived in India. He successfully
obtained refugee protection in Canada in July 2002. The PA was granted permanent
resident status in May 2003 and
subsequently attempted to sponsor his spouse, Tsering Paldon, their daughter Tenzin
Tselha, as well as his two children from an alleged previous common-law relationship,
the minor co-Applicants Tenzin Yonten and Tenzin Yeshi. His previous common-law
wife, Pema Bhuti, died in 1995.
[5]
The
PA’s spouse and children attended an interview at the Canadian High Commission
(CHC) in India on July 16,
2003. While the Officer was satisfied that there was a bona fide
relationship between the PA and his spouse and their child, she had concerns
about the parent-child relationship between the PA and the other two children.
After the interview, the Applicants received a letter requiring them to undergo
DNA testing to confirm their relationship if they wanted to proceed with the
application.
[6]
Much
to the alleged surprise of the PA, the results of the DNA test showed that he
was not the biological father of the minor co-Applicants. In his affidavit,
the PA described this revelation as “incredibly painful” since he had raised
Yonten and Yeshi as his own and had no idea that their deceased mother had any
other relationships during their common-law relationship.
[7]
As
a result of the DNA test, the minor co-Applicants were excluded from the PA’s
sponsorship application in January 2004. The Applicants received a letter to
this effect, advising them that they could nevertheless apply to be considered
separately for permanent residence “directly to any Canadian Embassy or
Consulate outside of Canada”. The PA’s spouse and child were granted
permanent resident status in March 2004. The minor co-Applicants were left
behind in India in the care
of the PA’s brother when the PA’s spouse and child left to join the PA in Canada.
[8]
In
an effort to bring the minor co-Applicants to Canada, the PA
resubmitted his application to sponsor Yonten and Yeshi as his de facto
dependent children on H&C grounds. This application was submitted to the
CHC in New
Delhi
on April 30, 2004. The application included submissions with respect to
H&C considerations, specifically the best interests of the children.
[9]
On
May 31, 2004, by way of letter the CHC informed the PA that the application for
Yonten and Yeshi could not be processed because the previous application for
sponsorship had been closed after visas were issued to the PA’s spouse and
child. On July 29, 2004 the PA filed an application for leave in the Federal
Court to commence a judicial review challenging the refusal to process the
application. Leave was granted on August 4, 2004.
[10]
The
PA and counsel for the Minister of Citizenship and Immigration (CIC) eventually
agreed to settle the matter. The terms of the settlement are found in a letter
from Ms. Marinos dated September 16, 2004 and provided that the PA’s
application for H&C consideration would be processed by the CHC in Delhi,
backdated to the original application date of May 2004. The PA filed a notice
of discontinuance on February 10, 2005, and resubmitted a completed application
to the Case Processing Centre (CPC) in Mississauga on May 25,
2005. Ms. Marinos advised the PA by way of letter dated February 9, 2005 that
in his application the PA should indicate that an H&C request was being
made and submit all the information related to the H&C request with the
children’s application.
[11]
It
is clear from the written submissions of the parties that it is at this point
their understanding of the facts giving rise to this matter diverged. The PA
received a letter from the CPC in Mississauga on June 16, 2005 informing him
that his application had been forwarded to the CHC in Delhi, and
referring to the application he submitted “on behalf of the child you intend to
adopt…” The letter further informed the PA that, as a resident of Ontario, he would be
subject to the Intercountry Adoption Act and that he would receive more
instructions and application kits for his children in the following weeks. The
PA claims to have been surprised by this letter, as it seemed to suggest that
his application was being processed on the basis that he intended to officially
adopt his children. His intent had always been, and the terms of the
settlement agreement provided for, the PA to sponsor his de facto children
on H&C grounds.
[12]
In
an effort to clarify the situation, the PA wrote to the CPC in Mississauga to emphasize
that the PA’s application to sponsor his de facto children would be
processed in New
Delhi
on H&C grounds, and an exemption from the adoption requirements had
therefore been requested. Nevertheless, on July 5, 2005 the PA received a
letter from the provincial Ministry of Children and Youth Services, advising
the PA that CIC required a “letter of no objection” from the Ministry, and
requesting further information. The case assistant who wrote the letter
understood that “adoption [was] part of the plan”. The PA responded with a
detailed affidavit and again mentioned that he wished to sponsor his de
facto dependent children, but would adopt them later in Canada.
[13]
In
October 2005, the PA again claims to have been surprised to receive a letter
from the Coordinator for Private and International Adoption for the Ministry of
Children and Youth Services, informing the PA that the adoption of the sponsored
children would be subject to certain legislation and so would require the PA to
fulfill a number of requirements, including obtaining a home-study report and
retaining the services of a licensed adoption agency.
[14]
According
to the affidavit of the PA, throughout 2005 and 2006 the PA still expected that
his application would be processed based on H&C considerations and he
continued to submit evidence of the relationship between the Applicants. The
PA also began to explore whether adopting the children in India would be a viable
option.
[15]
The
PA visited his children in India in March of 2006 and attempted,
unsuccessfully, to request an interview at the CHC in New Delhi to speed up
the process. Based on this visit, the PA developed more concerns regarding the
well-being of his children, and swore an affidavit to this effect which was
forwarded to the CHC in New Delhi on June 5, 2006. It
was accompanied by submissions regarding the prohibitive cost of adopting
children from India. He
therefore again requested that his sponsorship be processed on H&C
grounds. Correspondence with the CPC in Mississauga and the
provincial authorities was also included.
[16]
From
the point of view of the Respondent, the PA completed his sponsorship
application in 2005 as “children to be adopted in Canada”. The
applications for permanent residence in Canada as “children
to be adopted in Canada – FC6 category” were received at the CHC in New Delhi on
June 24, 2006. Applications filed under this category need to meet
several requirements under subsection 117(g) of the Immigration and
Refugee Protection Regulations (SOR/2002-227).
[17]
Manjit
Keshub, an Immigration Officer at the CHC in New Delhi, interviewed
the minor co-Applicants along with their paternal uncle on November 16, 2006.
[18]
The
PA received no communication from the CHC in New Delhi, and so sent
a letter of inquiry on December 18, 2006, again explaining his situation and
reiterating that he could not afford to adopt his children. On January 12,
2007, the PA was sent a letter requesting that he provide, within 180 days, the
documents required pursuant to regulation 117 - a guardianship order from a
court of competent jurisdiction giving him permission to remove the children
from India, a copy of a home study completed in Canada, a Notice of Agreement
or No Objection letter from provincial authorities and a No Objection
Certificate from the Central Adoption Resource Agency (CARA) in India.
[19]
The
PA believed that the CHC had mistakenly chosen to process his application on
the understanding that the PA intended to adopt the minor co-Applicants, and so
the PA sent another letter on February 6, 2007 repeating that the PA could not
afford to adopt his children and requesting that they be granted immigrant
visas as de facto family members on H&C grounds.
[20]
The
only response the PA received was a fax from the CHC on February 27, 2007
responding to the PA’s December 2006 inquiry and requesting the same
documents. The Respondent claims to have sent two similar further requests on
March 1, 2007 and July 18, 2007 for the same outstanding documents.
[21]
The
PA attempted to obtain the outstanding required documents. He arranged to have
a home-study conducted by a social worker from the Ontario Association of
Social Workers who agreed to provide her services at a very reduced cost given
the PA’s extenuating circumstances. The PA wrote to the CHC requesting
additional details regarding the specific requirements of the study three
times, in May, June and July 2007. The June letter also inquired as to whether
these requirements implied that the PA’s application was proceeding on an
adoption basis as opposed to an H&C basis. The PA received no response.
The PA decided to go ahead anyway, and the home study was completed on June 27,
2008. The completed study was sent to the CHC on June 27, 2008 along with
updated submissions concerning the best interests of the child.
[22]
According
to the affidavit of Manjit Keshub, the CHC only realized that the PA wanted his
application to be assessed on H&C grounds because the he could not afford
the $10,000 - $20,000 adoption fee per child following the June 27, 2008
submissions. This is reflected in his Computer Assisted Immigration Processing
System (CAIPS) notes as an entry dated July 24, 2008 which reads in part, “sponsor’s
counsel, Parkdale Community Legal Services advises that sponsor now wants
these two applications to be assessed on H&C grounds…” (emphasis added).
The only earlier reference to H&C consideration in the CAIPS was when the
file was initiated in June 16, 2005 and states, “counsel has provided a
complete submission for special consideration including H&C which will be
forwarded to the v/o”. However, in Mr. Keshub’s affidavit, he makes reference
to receiving the June 5, 2006 submissions giving the background of the PA’s
applications and a request that the application be processed on H&C
grounds, but does not note that this is inconsistent with his stated belief
that the PA changed his mind about how he wanted the application to be
sponsored in 2008.
[23]
The
PA continued to attempt to fulfill the requirements demanded by the CHC,
corresponding with them in August 2008 regarding the outstanding documents,
explaining the difficulty he was having acquiring them and again reiterating
that the PA wanted to sponsor the children on H&C grounds, and as children
he wished to adopt.
[24]
The
PA travelled to India in May 2009 to obtain a guardianship order.
His hearing was rescheduled three times before finally taking place June 1,
2009. During the same visit the PA repeatedly visited the CARA to obtain a “No
Objection Certificate”. CARA declined to provide such a certificate as neither
the PA nor the minor co-Applicants were citizens of India and CARA did
not belief itself to have jurisdiction over the matter. The PA eventually got
the Deputy Director of CARA to issue a letter saying as much.
[25]
In
July 2009, the PA received the written decision of the Indian court. The court
decided that it could not issue the PA a guardianship order because he was
found to be in fact and in law the father of the minor co-Applicants since they
were born during his marriage to their mother. The judge acknowledged that the
PA’s need for guardianship arose in the context of a negative DNA test, but
noted that the test results had not been placed on the record, despite the fact
that the PA had submitted an affidavit regarding the DNA test.
[26]
The
PA wrote to the CHC in September 2009 including an affidavit sworn by the PA
detailing his attempt to obtain a guardianship order and his current concerns
regarding the well-being of his children, a copy of the letter from CARA and a
copy of the court order refusing to grant the PA a guardianship order. The PA
requested that the minor co-Applicants be granted TRPs pursuant to subsection
24(1) of IRPA allowing them to await the CHC’s final decision in Canada.
[27]
In
October 2009 the Respondent advised the PA by e-mail that the additional
information provided in September 2009 would be reviewed and that a final
decision would be rendered in 10-12 weeks. After receiving no further
communication, in December 2009 the PA sent a follow-up letter requesting an
update, and reminding the visa officer that the PA had made a formal request
for the issuance of TRPs for the minor co-Applicants. Two additional follow-ups
were sent in January 2010, each with a second and third formal request for
TRPs.
[28]
By
way of letter dated January 11, 2010 the CHC informed the PA that in order to
review his application on H&C grounds they required a guardianship order
appointing the PA as the legal guardian. The PA was advised to apply to the
court for a guardianship order, this time filing the DNA evidence. The PA
responded on January 28, 2010 once again explaining the reason that he was
unable to obtain the required order and urging the visa officer to make a
decision based on the information available. In this letter, the PA made the
third formal request for the TRPs.
[29]
The
PA received no response to his letters, and so sent another follow-up letter to
the visa officer in March 2010 including a fourth formal request for TRPs and
advising the visa officer that the PA would be filing a mandamus request
in the Federal Court if their was no response within seven days. The CHC
responded via e-mail April 1, 2010 again asking for the guardianship document
that had been requested on January 11, 2010.
[30]
The
PA filed an Application for Leave and for Judicial Review in this Court,
following which Mr. Keshub provided his affidavit on behalf of the Minister
Respondent. In response to concerns the Immigration Officer raised in his
affidavit regarding the non-existence of a death certificate for the minor
co-Applicants’ mother, the PA prepared a further affidavit and sent this to the
CHC on New Delhi on July 23, 2010. Included was another request that the
children be granted TRPs.
[31]
The
PA sent further submissions to the CHC in New Delhi in September
2010 emphasizing the risk faced by the children. The PA alleges that as of
February 2011, Yonten will require an Indian Registration Certificate in order
to have legal status in India. Since his only known parent, the PA, is
now a Canadian citizen it will be impossible for Yonten to get this document.
At that point he will be living in India illegally and will be
unable to continue his education. Another request for TRPs was made on October
4, 2010.
[32]
On
October 21, 2010 the Federal Court granted leave on this application.
[33]
On
October 31, 2010 Mr. Keshub responded to the PA, again informing him that the
applications were not being processed because the CHC required an order of
guardianship. Mr. Keshub indicated that he believed the Indian court
erred the first time because the Court only relied upon affidavit evidence for
proof the PA’s marriage, which in fact was a common-law relationship. Mr. Keshub
informed the PA that he could apply for Minister’s permits for the children,
but that they might not be approved since it was clear that he was not the
biological father of the minor co-Applicants.
II.
Issue
[34]
The
issue to be decided is whether the Applicants are entitled to an order of mandamus
with respect to the PA’s pending application for immigrant visas and TRPs for
his two de facto dependent children on H&C grounds based on the
evidence provided and pursuant to the settlement agreement of 2004.
III. Argument
and Analysis
[35]
Mandamus is a
discretionary equitable remedy. For this Court to issue an order in the nature
of mandamus, the following criteria, as set out by Justice Joseph
Robertson writing for the Federal Court of Appeal in Apotex Inc. v
Canada (Attorney General), [1994] 1 FC 742, [1993] FCJ No 1098 (QL) (CA);
affirmed [1994] 3 S.C.R. 1100 at para 45, must be satisfied:
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: [omitted]
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.
[36]
The
Respondent’s submission focused on the third criterion. Specifically, the
Respondent submits that the PA has not satisfied all conditions precedent and
that the lengthened processing time required by the presence of “special
circumstances” is not prima facie unreasonable (Lee v Canada (Secretary
of State)
(1987), 16 FTR 314, 4 Imm. L.R. (2d) 97 (TD)).
A.
Conditions
Precedent
[37]
The
PA submits that there is a clear right to the performance of the duty and that
the PA has submitted and re-submitted all documentation requested to the best
of his ability and has thus satisfied all conditions precedent giving rise to
the duty.
[38]
The
Respondent submits that the PA has failed to provide the Respondent Minister
with a death certificate for his former common-law partner, Pema Bhuti, and
that without this, the Respondent has no conclusive evidence that the minor
co-Applicants’ mother is dead. Given the negative results of the DNA test, and
in light of the factual backdrop of this case, the Respondent argues that it is
not unreasonable to require that the PA be designated the legal guardian of the
minor co-Applicants.
[39]
The
concern regarding the provision of a death certificate for the PA’s wife was
never brought to the PA’s attention until the Respondent’s materials were filed
for this application. In response, the PA swore another affidavit explaining
why he did not have a death certificate and detailing his brother’s
unsuccessful attempts to obtain one from the equivalent of the coroner’s office
in New
Delhi
in the summer of 2010.
[40]
I
understand that the Respondent has concerns regarding the parentage of the
minor co-Applicants. In accordance with the legislation and regulations the
potential for abuse and child trafficking remains a major concern of the
Respondent. However, the PA has now spent five years trying to address these
concerns. There is nothing in the record to indicate that the PA’s efforts
have ever amounted to anything less than a noble attempt to comply with the
Respondent’s demands and expedite the arrival of the minor co-Applicants in Canada. From what
I can see in the record, there have never been any inconsistencies that raised
the suspicion of the representatives of the Respondent. At this stage, the
passage of more time seems unlikely to cure the deficiencies on which the
Respondent remains focused.
[41]
The
Respondent maintains that the PA should re-attempt to obtain a guardianship
order from the Indian court - despite the PA’s repeated explanations of how the
time and cost of doing so are prohibitive. The PA argued in his most recent
submissions that the matter would be considered res judicata by the
Indian court. I am not comfortable expounding on what would or would not be
the likely outcome of a second application to an Indian court, but note that at
this moment, the PA is considered by the Indian court to be the putative father
of the minor co-Applicants.
[42]
The
Respondent seems to be dissatisfied with this finding that the PA is the
“biological father” since it has in its hands conclusive evidence that the PA
can not possibly be the biological father. Furthermore, the record reveals
that the Respondent thinks this decision was arrived at in error since it is
based on the belief that the birth of the minor co-Applicants occurred during a
marriage between the PA and Pema Bhuti, the existence of which is not proven with
the usual kinds of documents.
[43]
In
fact, the order of the court only refers to the PA as the father and not the
biological father and the PA has previously sworn to the specifics of the relationship
he had with the mother of the minor co-Applicants and her subsequent death. In
the initial application in 2003 the PA provided the Respondent with the birth
certificates and school documents of the minor co-Applicants in which he is
described as their father.
[44]
I
can see no reason to say that the PA has failed to meet the conditions
precedent, especially when the PA asked the Respondent to make a decision based
on the material available, and the Respondent assented, estimating that a
decision would be arrived at in 10-12 weeks from October of 2009.
B. Unreasonable
Delay
[45]
Three
requirements must be met in order for a delay to be considered unreasonable:
(1) the delay in question must have been longer than the nature of the process
required, prima facie; (2) the applicant and his counsel must not be
responsible for the delay; and (3) the authority responsible for the delay must
not have provided a satisfactory justification (Conille v. Canada (Minister
of Citizenship and Immigration), [1999] 2 FC 33, 159 F.T.R. 215 at para 23.
In this case, I am satisfied that the PA has satisfied all three criteria.
[46]
The
Respondent submits that what is important in the case of permanent resident
visas is not whether the Respondent has explained a lengthened processing
period, but whether the record as a whole gives a preliminary indication of
special circumstances. I can agree that there are special circumstances in
this case, but as I think I have made clear already, the delay has been longer
than these circumstances required and has not been satisfactorily justified in
these proceedings by the Respondent.
[47]
Each
demand for mandamus turns on its own particular set of facts. As
Justice Michael Kelen wrote in Dragan v Canada (Minister of
Citizenship and Immigration), [2003] 4 FC 189 (TD), affirmed 2003
FCA 233:
[…]What period of time would be
considered too long to process an immigration file? In Bhatnager, supra,
the delay was four and a half years; in Dee, supra, and in Bouhaik, supra,
about four years; in Conille, supra, and in Platonov, supra,
about three years. All those delays were considered unreasonable on the facts.
The holdings did not, in the words of Strayer J. in Bhatnager, supra. at
page 317, "fix any uniform length of time as being the limit of what is reasonable."
Justice MacKay in Platonov, supra, also expressly cautioned against such
an approach at paragraph 10:
Each case turns upon its own facts, and I
am not persuaded that the jurisprudence in relation to this matter is
particularly helpful, except to outline some parameters within which the Court
has issued an order in the nature of mandamus where it has found there has been
unusual delay which is not reasonably explained.
[48]
As
the PA argues, the six-year plus delay has been much longer than the one to two
year processing time estimated by the Respondent for an H&C application.
Mr. Keshub sent the PA a letter in October 2009 stating that a decision would
be made in 10-12 weeks. However, an April 2010 e-mail from Mr. Keshub
made it clear that a decision had still not been made.
[49]
The
Respondent submits that the lengthened processing time has been necessitated by
the failure of the PA to provide sufficient evidence to establish that he has
the legal authority to bring the minor co-Applicants to Canada. However,
more than six years since the initial application, more than two years since
the Respondent re-realized that the application was to be processed on H&C
grounds, a misunderstanding the Respondent makes no attempt to explain, an
ample amount of time and correspondence has ensued in which the Respondent
ought to have at least raised the issue on which the he now relies to explain
the delay. Despite the suggestion in the Respondent’s written submission, I
will not be able to deny this application on the basis that the question of
whether or not Pema Bhuti is actually dead has yet to be definitively answered.
[50]
The
PA has submitted and re-submitted evidence. No reason has been given for
disbelieving any of the supported documentation. The Indian court considers
him the putative father of the minor co-Applicants. I share the PA’s view that
based on the evidence, a court in Canada would likely also find
that the PA is the de facto parent of the minor co-Applicants,
responsible for their care and support, DNA evidence aside.
[51]
The
delay has become unreasonable.
[52]
The
Respondent does not seem to contest, and I find, that all of the other
requirements of the mandamus test are met.
[53]
The
PA currently finds himself in a Kafkaesque state of limbo. It is unreasonable
for the Respondent to expect the PA to wait any longer for a decision. The PA
is asking for a decision to be made based on H&C considerations that would
exempt him from specific obligations imposed by IRPA and presently imposed by
the Respondent. It is paradoxical that the Respondent refuses to issue a
decision because it lacks specific documentation that the decision itself might
very well exempt the PA from having to provide.
IV. Conclusion
[54]
In
consideration of the above conclusions, this application for judicial review is
allowed. The Respondent is ordered to make a decision within 30 days.
[55]
No
question to be certified was proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed. The
Respondent is ordered to make a decision within 30 days.
“ D.
G. Near ”
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