Date: 20071015
Docket: IMM-288-07
Citation: 2007 FC 1048
Ottawa, Ontario, the 15th day of October 2007
Present:
the Honourable Mr. Justice Harrington
BETWEEN:
SERGE TAPIE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Serge
Tapie is a national of Cameroon. On November 9, 2004 he
claimed refugee status in Canada and almost immediately thereafter made an
application for permanent residence.
[2]
On
May
26, 2005
he received two letters from the Department of Citizenship and Immigration’s Case
Processing Centre. One of the letters stated that [TRANSLATION] “It has been
determined that you meet the eligibility conditions for permanent resident
status as a person in need of protection. A final decision will be taken when
you have met all the requirements of the regulations”. The other letter stated
that [TRANSLATION] “We are pleased to inform you that processing of your
application is complete. The Canada Immigration Centre in Montréal will contact
you regarding the granting of permanent residence”.
[3]
Since
receiving these letters, Mr. Tapie alleged that he has received no other
information. Accordingly, he retained the services of counsel and, in January
2007, began this application for judicial review to obtain a writ of mandamus,
directing the respondent to summon him forthwith and make a final decision,
granting him permanent resident status.
[4]
He
alleged that he had in fact met all the eligibility requirements for permanent
residence since refugee status was granted in 2004 and that the usual delay in
making a decision on such an application is not more than six months. At the
time this application was filed in this Court, he had already been awaiting a
final decision for a little over two years.
[5]
In
the meantime, the interventions section of the Border Services Agency of the
Minister of Public Safety and Emergency Preparedness was considering whether to
apply for cancellation of his refugee status. Following an investigation
pursuant to section 44 of the Immigration and Refugee Protection Act, a
report issued on July 27, 2006 concluded that Mr. Tapie was not eligible as a
result of obtaining his status by fraud, namely through the use of a false
identity, and that the reasons given to support his alleged persecution in
Cameroon were false.
[6]
In
August 2007, a few weeks after receiving leave to proceed with this application
for judicial review, Mr. Tapie was informed that the Agency had sent an
application to cancel his refugee status to the Refugee Protection Division
pursuant to Rule 57 of the Refugee Protection Division Rules and
pursuant to section 109 of the Act:
|
109. (1) The Refugee Protection Division
may, on application by the Minister, vacate a decision to allow a claim for
refugee protection, if it finds that the decision was obtained as a result of
directly or indirectly misrepresenting or withholding material facts relating
to a relevant matter.
|
109. (1) La Section de la
protection des réfugiés peut, sur demande du ministre, annuler la décision
ayant accueilli la demande d’asile résultant, directement ou indirectement,
de présentations erronées sur un fait important quant à un objet pertinent,
ou de réticence sur ce fait.
|
[7]
In
the circumstances of the case at bar, a two-year delay is not unreasonable. Although
at first sight it seems to be a long period of time for someone to wait to have
permanent resident status granted, mandamus applications have to be
assessed in terms of the particular facts of the case. The issuing of a writ of
mandamus is an extraordinary remedy and the Federal Court of Appeal has
laid down the conditions on which it may be granted (Apotex Inc. v. Canada (Attorney
General), [1994] 1 F.C. 742 (C.A.), [1993] F.C.J. No. 1098; Conille v. Canada (Department of
Citizenship and Immigration), [1999] 2 F.C. 33, [1998] F.C.J. No. 1553). The conditions that must be met for the panel to be able
to issue a writ of mandamus were stated in Apotex:
(i)
there must be a public legal duty to act;
(ii) the
duty must be owed to the applicant;
(iii)
there is a clear right to the performance of that duty, in particular:
(a)
the applicant has satisfied all the 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;
(iv)
no other adequate remedy is available to the applicant;
(v)
the order sought will be of some practical value or effect;
(vi) in exercising its discretion, the panel found no
equitable bar to the relief sought;
(vii)
On the “balance of convenience”, an order in the nature of mandamus
should be made.
[8]
The Court may refer to other points of reference in determining
what is a reasonable delay. In Conille, at paragraph 23, Tremblay-Lamer
J. explained that to be regarded as unreasonable a delay must meet the
following three conditions:
(1) the delay in
question was longer than the nature of the process required, prima facie;
(2) the applicant and
his or her legal counsel were not responsible for the delay;
(3) the authority
responsible for the delay did not provide satisfactory justification.
[9]
In
Seyoboka
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1290, [2005] F.C.J.
No. 1611, the Court dismissed the application for a writ of mandamus
despite a nine-year delay between the applicant’s application for permanent
residence and the one seeking the cancellation of his refugee status. In his
decision Pinard J. said:
[10] Further, the Minister of Public Safety applied to the IRB to annul
the applicant’s refugee status. That application, though late, is certainly not
frivolous. If it is granted, any right to permanent residence would be
annulled. In the interim, therefore, until the application by the Minister of
Public Safety is decided, in my opinion issuing a writ of mandamus would
serve no purpose (see, for example, Kang v. Minister of Citizenship and
Immigration, [2001] F.C.J. No. 1544 (QL), Chaudhry v. Minister of
Citizenship and Immigration, [1998] F.C.J. No. 1695 (QL) and Singh
v. Minister of Citizenship and Immigration, [1998] F.C.J. No. 585 (QL)).
[10]
I
am of the same opinion. The Minister of Public Safety and Emergency Preparedness
had the right, and in my view was justified on the facts, to conduct such an
investigation into Mr. Tapie’s case. If the Immigration and Refugee Board
agrees with the Minister’s conclusions, it may decide to revoke Mr. Tapie’s
refugee status.
[11]
For
the moment, Mr. Tapie appears prima facie to meet the conditions for
obtaining permanent resident status. However, if the Board comes to a negative
conclusion after more careful study, he will probably not have met those
conditions.
[12]
For these reasons, I consider that there is no basis for issuing a
writ of mandamus. The application for judicial review will be dismissed.
[13]
No question was suggested for certification and the case does not
raise any.
ORDER
THE COURT
ORDERS THAT this application for judicial review, seeking an order to
compel the Minister to proceed forthwith [TRANSLATION] “to issue permanent
residence to Serge Tapie”, is dismissed.
“Sean Harrington”
Certified
true translation
Brian
McCordick, Translator
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