Date: 20080513
Docket: IMM-4093-07
Citation: 2008 FC 599
BETWEEN:
KALADEVI
BAGEERATHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR
ORDER
PHELAN J.
I. INTRODUCTION
[1]
In
this proceeding, the Applicant seeks a form of mandamus directing that
permanent resident status be granted to her husband. The reason for the request
is that there has been unreasonable delay in the processing of the sponsored
application for permanent residence.
[2]
This
is an unfortunate case of bureaucratic paralysis which requires the Court’s
direction to the Respondent to carry out its duty. Cases of this type turn on
their specific facts and it should be emphasized that the use of mandamus
powers are and must remain rare.
II. FACTUAL
BACKGROUND
[3]
The
Applicant, born in Sri Lanka, is a Tamil woman from the north of the country.
She married, lived with her husband and they eventually had a son.
[4]
The
Applicant left Sri Lanka and arrived in Canada with her son
in June 2003. Her claim for Convention refugee status was granted in October
2003.
[5]
As
a result of her refugee status, the Applicant was entitled to apply for
permanent resident status for herself, her son and her husband who had stayed
back in Sri
Lanka.
This she did in November 2003.
[6]
Under
the Immigration and Refugee Protection Regulations (Regulations) the
Applicant’s husband did not need to meet medical conditions for admission nor
did the Applicant have to satisfy financial conditions. The principal clearance
for admission is that of security alone.
[7]
The
problem in this case appears to stem from the Visa Post in Colombo. Despite the
fact that the Applicant had a child by her husband, lived with him prior to
coming to Canada and wished
to have him join her in Canada as her husband, the Visa Post delayed the
processing of the permanent resident visa because, it must be assumed, of
questions as to their marital status.
[8]
Although
a couple need only establish that they are in a common law relationship, the
Visa Post chose to verify a marriage certificate presented by the husband. As a
result, in late 2004, the application processing was stayed, including any
interview with the husband concerning his marriage or matters relevant to his
admission to Canada.
[9]
Despite
requests from Immigration officials in Toronto to process
the application, the Visa Post did not respond.
[10]
In
May 2006, the Visa Post, having held the application for 21 months (the
application is now 30 months old), noted in its files that it was reviewing the
file in six months’ time.
[11]
Despite
not receiving a response from Sri Lankan authorities regarding verification of
the marriage certificate, the Visa Post interviewed the husband. He provided
further evidence of his marriage, including a wedding album and photographs.
The staff person at the Visa Post noted in July 2006: “HAVE NO CONCERNS WITH
RELATIONSHIP”.
[12]
However,
in October 2006, another staff member noted in the CAIPS Notes that the
marriage certificate had been verified as fraudulent.
[13]
This
notation led to a visit to the Central Registry in Colombo where the
Visa Post staff was informed that there was no marriage certificate filed. In
fact, there were no marriage certificates filed that day from any place in Sri Lanka – a time of
year deemed auspicious for weddings.
[14]
The
Visa Post concluded with finality that a marriage certificate issued in Jaffna
(during the course of the civil war in that area) but not recorded in Colombo was
fraudulent.
[15]
The
husband was again interviewed – this time in November 2006 - and again he declared
that the marriage was genuine, that it had occurred as stated and that the
marriage certificate was genuine. The Visa Post then suspended the interview
and directed the husband to complete a form listing where he had lived since he
was 18 years old.
[16]
The
last action on this file was the November 2006 interview. Since that time, the
Visa Post has not reversed the earlier declaration that the relationship was
genuine, reversed the conclusion that the marriage certificate is fraudulent,
acted upon the husband’s list of past addresses, or otherwise processed the
application or made any determination whatsoever.
[17]
This
complete inaction has continued despite the Applicant obtaining leave to apply for
judicial review, the litigation of this application, the Court’s adjournment to
permit the Respondent to decide whether it could or should issue a temporary
resident visa. At the resumed hearing on May 6, 2008, the Respondent
continued in its state of suspended animation.
III. ANALYSIS
[18]
Section
141 of the Regulations contains the mandatory language “shall”. The relevant
provisions are:
|
141. (1) A permanent resident visa shall
be issued to a family member who does not accompany the applicant if,
following an examination, it is established that
(a) the family member was included in the
applicant's permanent resident visa application at the time that application
was made, or was added to that application before the applicant's departure
for Canada;
(b) the family member submits their
application to an officer outside Canada within one year from the day on which refugee protection
is conferred on the applicant;
(c) the family member is not inadmissible;
[…]
|
141. (1) Un visa de résident permanent est délivré à tout
membre de la famille du demandeur qui ne l’accompagne pas si, à l’issue d’un
contrôle, les éléments suivants sont établis :
a) le
membre de la famille était visé par la demande de visa de résident permanent
du demandeur au moment où celle-ci a été faite ou son nom y a été ajouté
avant le départ du demandeur pour le Canada;
b) il
présente sa demande à un agent qui se trouve hors du Canada dans un délai
d’un an suivant le jour où le demandeur se voit conférer l’asile;
c) il n’est
pas interdit de territoire;
[…]
|
[19]
I
need not decide whether because the applications were concurrent, s. 141
requires the issuance of a visa for the non-accompanying family member at the
same time with the issuance to the Canadian-based other family members.
[20]
What
is obvious in this case is that the Respondent has ceased processing the
husband’s application. The Applicant and her husband were entitled to a
decision within a reasonable time. The Visa Post has already determined the
family relationship to be genuine.
[21]
The
Applicant and her husband submitted DNA evidence establishing the paternity of
their son. That evidence of paternity has not been challenged.
[22]
The
only impediment appears to be the absence in Colombo (not Jaffna where the
marriage ceremony occurred) of a record of their marriage, nor apparently of
any other marriage in the whole of the country on that date, a matter which
should have raised questions as to the record keeping at the Central Registry.
[23]
Under
all the circumstances, the Court must conclude that this is an instance of
unreasonable delay in making a determination of permanent resident status. It
is a disturbing instance of inaction made more egregious by the furthering of
the delay during the judicial review process.
IV. CONCLUSION
[24]
Therefore,
judicial review will be granted. While the Applicant, quite reasonably, asks
for an order requiring the Respondent to grant permanent residence within 90
days, the Court is reluctant to do so given the outstanding security clearance.
It is outstanding because the Respondent has let the police clearance lapse
through its own inaction.
[25]
The
Court has issued an Order requiring the Respondent to make a determination of
the application within 90 days. The Court has retained jurisdiction to deal
with any issues which may arise that affect the mandatory order.
[26]
The
Court expects that, barring some unusual circumstance, the Respondent will
grant the application prior to the deadline. Further unjustified delay could be
contempt of this Court and could lead to penalties and costs.
[27]
There
is no question for certification.
“Michael
L. Phelan”
Ottawa, Ontario
May
13, 2008
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