Date: 20110325
Docket: IMM-209-10
Citation: 2011
FC 372
Ottawa, Ontario, March 25, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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OLABANJI OLUSHOLA BANKOLE
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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
[1] This
application commenced as an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, RSC 2001, c. 27 (the Act) for an order of mandamus
with respect to the permanent residence application in Court file IMM-1244-10.
Background
[2] Olbanji Olushola Bankole
(the applicant) is a citizen of Nigeria. He was granted Convention refugee status in Canada on May 20, 2004. He
applied for permanent residence on May 27, 2004. This application was approved
in principle by Citizenship and Immigration Canada (CIC) Vegreville on January
26, 2005.
[3] On January 31, 2005, the
applicant was stopped at Pearson International Airport in Toronto, returning
from the Bahamas, allegedly escorting an
undocumented person, Mr. Prince Sarumi. The applicant alleged that he had only
just met Mr. Sarumi, but an address book attributed to the applicant was found
containing Mr. Surumi’s contact information in several locations. The applicant
alleges that this address book did not belong to him. Charges were laid against
the applicant for counseling/abetting a person to misrepresent a matter to
induce error in the administration of the Act, contrary to section 126. Reports
were made pursuant to section 44 of the Act. The charges were ultimately
dropped and the applicant submitted a provincial court document to Canada
Border Services Agency (CBSA) indicating as much. As a result of this event,
the applicant’s application was referred to a local CIC office for further
investigation.
[4] On
September 22, 2005, the applicant was stopped at the Kotoka Airport in Accra, Ghana, with
another traveller who was impersonating Nicole Aborra. The migration integrity officer
(MIO) found that the applicant and the impostor’s flights had been booked and
purchased on the same day. The applicant was interviewed at the Kotoka airport
and the Canadian High Commission in Ghana. The applicant changed
his story several times regarding how he knew the impostor. The applicant was
never charged or arrested in Ghana. At Pearson International Airport, after
returning to Canada, the applicant was found carrying documents in his baggage
that were in the names of people other than himself.
[5] The
Royal Canadian Mounted Police (RCMP) investigated the allegations of abetting
personation but did not file charges. The RCMP report notes that the principal
reason for this was that the evidence and witnesses were in Ghana.
[6] The
applicant applied for an order of mandamus on January 12, 2010 to have a
decision made on his application for permanent residence. A decision was
reached by CIC on March 1, 2010, despite the fact that an order for mandamus
was never issued.
[7] At
the hearing of this matter, the applicant conceded that the application for a
writ of mandamus was moot. As a result, the only issues remaining before
me are the issue of costs and the request for the expungement order.
[8] Rule
22 of the Federal Courts Immigration and Refugee Protection Rules,
SOR/93-22 reads as follows:
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22. 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.
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22.
Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la
demande d’autorisation, la demande de contrôle judiciaire ou l’appel
introduit en application des présentes règles ne donnent pas lieu à des
dépens.
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[9] The jurisprudence
of this Court has held that the threshold for special reasons within the
meaning of Rule 22 is high (see Yadov v. Canada (Minister of
Citizenship and Immigration) 2010 FC 140. The Court has also stated
that even when the pace of the processing of the application is slow, special
reasons to award costs will not often exist (see Uppal v. Canada (Minister
of Citizenship and Immigration) 2005 FC 1133).
[10] The
applicant submitted that the officer’s and CIC’s conduct and delay were
equivalent to bad faith. I would note that some of the time was required to
review the applicant’s incidents with respect to his travel with others. From a
review of all the evidence, I cannot conclude that there is any evidence of
improper conduct that amounts to bad faith.
[11] I
have considered the examples of behaviour which the applicant submits would
qualify as special reasons so as to permit an award of costs. I have reviewed
each of these examples and I am not satisfied that they qualify as special
reasons so as to justify an award of costs.
[12] The
applicant has also requested an order from the Court “directing the respondent
to expunge anything from his record that has not been proven through a judicial
process”. I have considered this request and I am not prepared to grant this
order. In any file, there will be material that has not been proven through a
judicial process. As an example, an officer may gather facts and place the
facts on a file. These facts can remain there but they were not proven in a
judicial process. I simply do not have the jurisdiction to make the order
requested.
[13] The
application for judicial review (mandamus) is dismissed by agreement and
there shall be no order as to costs.
[14] Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[15] IT
IS ORDERED that:
1. The application for
judicial review (mandamus) is dismissed.
2. There
shall be no order for costs.
3. The
request for an order “directing the respondent to expunge anything from his
record that has not been proven through a judicial process” is denied.
“John
A. O’Keefe”
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