Date: 20081104
Docket: IMM-1607-08
Citation: 2008 FC 1228
Ottawa, Ontario, November 4,
2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
SUBRAMANIAM SUBAHARAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] The
applicant’s request for an order of mandamus is allowed because the
delay in question has been longer than the nature of the process prima facie
requires, neither the applicant nor his counsel are responsible for the delay,
and the Minister has not provided a satisfactory justification for the delay.
[2] On
October 17, 2004, Rajaluxmy Subaharan (a permanent resident of Canada)
sponsored the application of her husband, Subramaniam Subaharan, for residence
in Canada. While the sponsorship was initially refused by the visa post in Colombo,
Sri Lanka, on March 20, 2006, the Immigration Appeal Division of the
Immigration Refugee Board allowed an appeal of that finding. The visa post
then resumed processing the application. Over two and one half years has
elapsed since then.
[3] Citizenship
and Immigration Canada currently advises that the visa post in Colombo
finalizes 50% of the family class (spouses and partners) applications for
permanent residence that it receives within six months. 80% are finalized in
nine months. The website does caution that past processing times may not be
indicative of future processing times.
[4] Mr.
Subaharan’s application was complicated by the fact that on June 27, 2000 he
was convicted in Hong Kong of the offense of possession of a forged travel
document. He was sentenced to six months imprisonment. He says that he was
caught while in transit to the United States in order to make a refugee claim.
[5] No
affidavit was filed on the Minister’s behalf, but it appears from the Computer
Assisted Immigration Processing System (CAIPS) notes that this conviction gave
rise to concern as to whether Mr. Subaharan was inadmissible to Canada.
The CAIPS notes record that, as of August 14, 2006, the visa post required
the “charge sheet and conviction order” from Hong Kong.
[6] By
November 7, 2006, the visa post had received two letters from the Hong Kong
Police Force. One advised that they were unable to advise that Mr. Subaharan
had no criminal convictions in Hong Kong. The other advised that on June 27,
2000, he received a sentence of six months imprisonment in respect of the
offense of possession of a forged travel document. It was noted that this
related to subparagraph “42(2)(c)(i) Cap 115”.
[7] Thereafter,
the CAIPS notes show confusion on the part of the visa post. On July 31, 2007,
an entry reads “was PI convicted or only charged? What was the outcome of the
charges? [We] need answers to these in order to take a decision.” The answers
had previously been received from the Hong Kong Police Force.
[8] On
February 19, 2008, the following entry was made in the CAIPS notes:
WD NEED THE FOLLOWING INFO FROM HONG KONG:
-
WAS
PI CHARGED OR CONVICTED?
-
WHAT
WAS OUTCOME?
-
WD
ALSO NEED THE EXACT WORDING OF S. 42(2)(c)(i) Cap 115 OF THE HONG KONG CRIMINAL
CODE IN ORDER TO FIND EQUALENCY [sic] UNDER THE CANADIAN CRIMINAL CODE.
[9] On
March 4, 2008, an e-mail was sent from the visa post in Sri Lanka to the
Canadian visa post in Hong Kong:
Subject is an applicant under the
FC1 category.
We have a Police Record (see
attachment) stating that subject was in possession of a forged travel document
and was imprisoned for 6 months. He was charged under s. 42(2)(c)(i) Cap
115.
In order to proceed with the case
the processing team needs the following information:
-
Was PI charged or convicted?
-
What was the outcome?
-
The exact wording of s. 42(2)(c)(i) Cap 115 of the Hong Kong Criminal
Code in order to find the equalency [sic] under the Canadian Criminal
Code.
Your assistance in this matter
would be greatly appreciated.
[10] On
March 6, 2008, the text of the relevant provision of the Hong Kong Criminal
Code was received from the Hong Kong mission.
[11] The
CAIPS notes do not record any significant progress after this.
[12] As
a matter of law, the parties are agreed that the principles that govern the
grant of mandamus are those articulated by the Federal Court of Appeal
in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742.
They further agree that the specific principle relevant to this case is the
requirement that the applicant establishes a clear right to the performance of
the requested duty, and more particularly the requirement that the applicant
establish that a reasonable amount of time has elapsed for the performance of
the duty.
[13] When
considering whether a period of delay is unreasonable, the Court has applied
the tripartite test articulated by my colleague Justice Tremblay-Lamer in Conille
v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33. A
delay is to be considered unreasonable if:
(1)
the delay in question has been longer than the nature of the process
requires, 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 a satisfactory
justification.
[14] No
issue arises in this case with respect to the second element of the test.
[15] The
delay, to date, of over 2½ years since the Immigration Appeal Division allowed
the appeal, is far in excess of normal processing times. For a great period of
that time (from November 7, 2006 forward) much of the information sought by the
visa post was already in its possession. It took the visa post from November 7,
2006 to March 6, 2008 to obtain the text of part of a public statute. After
March 6, 2008, there is no evidence of any effort to process, that is reach a
decision upon, the information that had been obtained.
[16] It
is not apparent from the CAIPS notes that any other information was required by
the visa post. The Minister has not provided evidence to that effect.
[17] I
conclude from this evidence that the delay has been longer than prima facie
required and that there is no satisfactory explanation for the delay. The
application for judicial review will, therefore, be allowed.
[18] Mr.
Subaharan seeks costs.
[19] In
Uppal v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 1390, this Court wrote at paragraphs 5 and 6:
5. Costs are generally not awarded in applications
for leave and for judicial review brought in the context of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 ("Act"). This is because
Rule 22 of the Federal Court Immigration and Refugee Protection Rules,
SOR/2002-232 ("Rules") provides that no costs shall be awarded in
proceedings under the Rules "unless the Court, for special reasons, so
orders".
6. The
jurisprudence of the Court that has considered this rule, and its predecessor,
is to the effect that a finding that an order of mandamus is warranted is not,
by itself, sufficient to justify the award of costs. See, for example,
Kalachnikov v. Canada (Minister of Citizenship and Immigration) (2003), 236
F.T.R. 142 (T.D.). Each request for costs will turn upon the particular
circumstances of the case.
[20] While
Mr. Subaharan’s application has not been processed speedily, I have not been
persuaded that the pace was so slow as to give rise to special circumstances
and an award of costs. There is no evidence of conduct that is unfair,
oppressive, improper or actuated by bad faith. No costs are awarded.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. An order in the nature of mandamus
issues, requiring the respondent to process Mr. Subaharan's application
for permanent residence in Canada in accordance with the law and the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, and in accordance with the
following terms:
(i)
The respondent shall process Mr. Subaharan's
application for permanent residence in Canada and provide him with a decision with respect to the application within 90
days of this judgment.
(ii)
The period for making the decision shall be
subject to further extension by the Court, on motion made by the respondent, if
the respondent applies for such extension before the expiration of the 90-day
period, and if the respondent is able to establish on evidence that such
further time is required due to causes or circumstances beyond his control.
2.
No costs are awarded.
“Eleanor R. Dawson”
Email this Content