Date: 20080603
Docket: IMM-4220-07
Citation: 2008 FC 687
Ottawa, Ontario, June 3, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
SHAB
ZAIB
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review for a pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, 2001, c. 27, (the Act) for the
purpose of obtaining a writ of mandamus directing the respondent to
process the applicant’s application for permanent residence and issue a final
decision within 60 days of the Order.
ISSUES
[2]
Only
one issue divides the parties: based on the facts of the case, was the delay in
processing the applicant’s claim unreasonable?
FACTUAL BACKGROUND
[3]
The
applicant is a citizen of Pakistan, born on August 6,
1997. He made a claim for refugee protection in Canada, which was
determined to be successful by the Immigration and Refugee Board on August 8,
2003.
[4]
The
applicant made an application for permanent residence in September 2003. The
required fee was paid on August 28, 2003 and included in the application. The
application for permanent residence as a protected person was received on
September 30, 2003, at the Case Processing Centre (CPC) in Vegreville, Alberta.
[5]
On
May 18, 2004, a letter was sent to the applicant advising him that his
application had been approved at the first stage, but that a valid passport was
required for stage two processing, at which time it is determined whether an
applicant meets the admissibility requirements of the Act. The applicant did
not respond to this request, and a second request for the submission of a valid
passport was made on November 10, 2004. The letter informed the applicant that
he had 60 days to comply with this second request.
[6]
On
March 24, 2005, the CPC advised the applicant that the non-translated Pakistan
National ID card which he had submitted was found not to meet the requirements
of section 50 of the Immigration and Refugee Protection Regulations,
SOR/2002-227. He was advised that if he could provide a satisfactory ID
document within 30 days, he should forward it to CPC Vegreville.
[7]
On
April 25, 2005, the applicant provided photocopies and translations of his new
national ID card as well as a passport issued in March 2005.
[8]
The
applicant was advised that his file was sent to Etobicoke for further
processing in 2006, but received no decision regarding his application. He
retained counsel and two letters were sent on his behalf to the respondent on
September 10, 2007 and September 20, 2007, requesting that a decision be
communicated within 20 days, failing which an application for judicial review
and mandamus would be commenced before this Court.
[9]
The
application for leave and judicial review was filed on October 12, 2007.
[10]
On
December 3, 2007, the respondent sent a letter to the applicant requesting that
he forward original documentation in support of his identity.
[11]
On
December 10, 2007 Immigration Officer, Rosemarie Conte, swore an affidavit, on
behalf of the respondent, based on her review of the Tribunal Record. At
paragraph 9 of her affidavit, she stated that concerns were raised regarding
the genuineness of the passport submitted in April 2005 because it was issued
in Gujranwala, Pakistan in 2005, despite the
fact that the applicant never returned to Pakistan following his refugee claim. The Pakistan
embassy in Canada advised the respondent
that passports issued in Gujranwala, are only issued if the
application is made in person. These concerns were at no time communicated to
the applicant.
[12]
On
the date of the hearing, the respondent submitted another affidavit from
Rosemarie Conte (signed May 16, 2008) to which is attached a recent e-mail from
the Visa Post in Islamabad concerning the documents submitted by the applicant
in support of his permanent residence application. The e-mail mentions that
"Response from the issuing authorities is still awaited for the
documents…" It also adds that "[t]he passport office will not/not be
issuing a passport to an individual who is residing abroad."
ANALYSIS
[13]
The
parties agree that the proper test which must be applied to determine whether a
writ of mandamus should be issued is set out in Dragan v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 211 at paragraph 39, [2003] 4
F.C. 189:
[39] In Apotex Inc. v. Canada
(A.G.), [1994] 1 F.C. 742 (C.A.), aff'd [1994] 3 S.C.R. 1100, the Federal
Court of Appeal conducted an extensive review of the jurisprudence relating to mandamus
and outlined the following conditions that need to be satisfied for the Court
to issue a writ of mandamus:
(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 the 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) No other
adequate remedy is available to the applicant.
(5) The order
sought will be of some practical value or effect.
(6) The Court in the
exercise of discretion finds no equitable bar to the relief sought.
(7) On a "balance
of convenience" an order in the nature of mandamus should issue.
See also Khalil v. Canada (Secretary of State), [1999] 4 F.C. 661 (C.A.).
[14]
The
contentious issue for the parties is whether there was an unreasonable delay,
arising under subparagraph (3)(b)(iii) of the above test, in processing
the applicant’s claim.
[15]
The
parties also agree on the requirements which establish the unreasonableness of
a delay, as set out in Conille v. Canada (Minister of
Citizenship and Immigration), [1999] 2 F.C. 33 (F.C.T.D.), at paragraph
23:
[23] From the reasons of the Court,
it appears that three requirements must be met if a delay is to be considered
unreasonable:
(1) the delay in
question has been longer than the nature of the process required, prima
facie;
(2) the applicant and
his counsel are not responsible for the delay; and
(3) the authority
responsible for the delay has not provided satisfactory justification.
See also Debora Bhatnager v. Canada (Minister
of Employment and Immigration and Secretary of State for External Affairs),
[1985] 2 F.C. 315 (F.C.T.D.); Mohamed v. Canada (Minister of Citizenship and
Immigration), 195 F.T.R. 137, at
paragraph 12; Kalachnikov v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 777, at paragraph 12, 236 F.T.R. 142; Hanano v.
Canada (Minister of Citizenship and Immigration), 2004 FC 998, at paragraph
10, 257 F.T.R. 66.
[16]
It
is clear from the language employed by Justice Tremblay-Lamer in Conille,
above, that the requirements are conjunctive, and therefore must all be met if
the Court is to find the delay to be unreasonable and therefore order a writ of
mandamus.
[17]
It
is my opinion that the applicant and his counsel cannot claim to be free of
responsibility for the delay. The applicant failed to provide a valid passport
within the required time pursuant to requests made on May 18, 2004 and November
10, 2004. The applicant therefore contributed to the overall delay.
[18]
However,
the applicant argues that he was never advised of the respondent’s concerns
regarding the genuineness of the ID documents provided. The record demonstrates
that the respondent’s concerns were not communicated to the applicant following
his submission of new documents in April 2005. The failure of the respondent to
notify the applicant of its concerns regarding the validity of the documents
and translations submitted by the applicant in April 2005 cannot be attributed
to the applicant. On December 3, 2007, over a month following the filing of the
present application and close to three months after being put on notice by
counsel for the applicant, the applicant was requested that he submit his
original ID in support of his identity. It appears from the note at page 61 of
the Tribunal Record that steps were taken internally as of November 15, 2007 to
verify the genuineness of the identity documents provided.
[19]
It
is my opinion that the delay of over two and a half years, from April 2005 until
December 2007, meets all three requirements set out in Conille, above.
First, the delay is longer than the nature of the process required; there can
be little question that two and a half years are not necessary to take any
action to advise the applicant of the insufficiency of his identity evidence.
[20]
Second,
the delay cannot be attributed to the applicant. It is noteworthy that the last
letter received by the applicant advising him of the insufficiency of the
documentation referred to the failure to provide translated documents. It
states: “The id card with no translation that was submitted with your
application has been examined and it does not meet the requirement of providing
a valid passport, travel document or other satisfactory identity document as
required by the Immigration legislation.” In the circumstances, it seemed that
the letter took issue with the fact that the ID card was not translated. It was
therefore reasonable that the applicant submitted an ID card with a
translation. Without further communication from the respondent detailing the
concerns raised, the applicant cannot be faulted for the delay.
[21]
Finally,
nothing in the respondent’s submissions or in the Tribunal Record provides a
satisfactory justification for the delay. While it is certainly open to the
respondent to undertake the identity and security checks in processing
applications for permanent residence, it is incumbent upon the respondent not
to let the file stagnate indefinitely. I note that the respondent communicated
with the applicant on two occasions between April 2005 and December 2007. On March
28, 2006, a letter was sent from Vegreville notifying the applicant that his
case was being transferred to Etobicoke, and on April 26, 2006, St. Clair office
sent a letter advising him that his file had been received from Etobicoke for
further processing. The respondent could have notified the applicant of the
lacunas in his proof of identity on either of these occasions, but failed to do
so.
[22]
The
delay between April 2005 and December 3, 2007 was unreasonable in not notifying
the applicant of the concerns over the identity documents. However, because of
the action taken by the respondent on December 3, 2007 and on February 20, 2008
(e-mail from Rosemarie Conte to Mission-Islamabad asking for assistance in
obtaining verification of the Birth Register Municipal Corporation, School
Leaving Certificate, and Pakistan Passport No KE848628), I am of the opinion
that a writ of mandamus is not appropriate at this time.
[23]
I
would therefore adopt the solution espoused by my colleague Justice Kelen in Rousseau
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 602, at paragraph 8, 252 F.T.R.
309:
[8] Since the respondent has
recently taken action on this file so that the purpose of the mandamus
action has been accomplished, no writ of mandamus is appropriate at this
time. However, the Court will retain jurisdiction and invite the parties to
make further submissions in two months if the Minister has not taken action by
that time frame. In two months, the Court will render its order either granting
the writ of mandamus or dismissing the action.
[24]
In
the case at bar, the Court will retain jurisdiction and invite the parties to
make further submissions if the respondent has not taken action within three months
following this decision.
[25]
The
parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT ORDERS
that the
Court retains jurisdiction and invites the parties to make further submissions
if the respondent has not taken action within three months following this
decision.
“Michel
Beaudry”
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