Date:
20130620
Docket:
IMM-8486-12
Citation:
2013 FC 663
Ottawa, Ontario,
this 20th day of June 2013
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
Wei Liang KUANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the “Act”). The applicant
seeks a mandamus order compelling Citizenship and Immigration Canada [CIC]
to release his permanent resident (“PR”) card to him within 15 days of the date
of the granting of an order to do so.
[2]
The
applicant, his wife and their son became permanent residents of Canada in February 2003. The family subsequently returned to China, where the applicant was
employed by a Canadian business.
[3]
The
applicant, his wife and their son applied for travel documents on December 16,
2008. Their applications were refused on June 7, 2009, as a visa officer found
the applicant’s employment with the Canadian business was not genuine and that
he and his family had not satisfied their residency obligations under section
28 of the Act for the five-year period under consideration.
[4]
The
applicant and his family appealed this decision to the Immigration Appeal
Division [IAD]. In February 2011, the IAD determined that the applicant had
satisfied the section 28 residency requirements for permanent residency over
the five-year period of December 23, 2003 to December 22, 2008. As such, the
family maintained their permanent resident status. The Minister filed an
application for judicial review with the Federal Court, but the application was
discontinued.
[5]
In
light of the IAD decision, on July 19, 2011, the family applied for renewal of
their PR cards. The applications were approved and CIC notified the applicant
and his family that they were to pick up their PR cards in Vancouver on June
29, 2012.
The
CIC notices included the following statement:
PLEASE
NOTE: All permanent residents are subject to examination for residency
obligation at time of card distribution. An officer will review your documents
and may request additional information to determine your eligibility for a PR
card.
[6]
On
June 26, 2012, the applicant and his wife arrived in Vancouver. The applicant
was questioned by the Canada Border Services Agency [CBSA] at the airport. The
respondent states that this interview raised questions about the applicant’s
compliance with his residency obligation. The applicant asserts that the CBSA
did not permit him to speak to his legal counsel and only allowed him to leave
the airport after extended questioning.
[7]
The
applicant and his wife were not given their PR cards when they arrived at the
CIC office for their appointments on June 29, 2012. Rather, they were required
to complete additional residency questionnaires and submit additional
supporting documents regarding the applicant’s overseas employment by the
Canadian business.
[8]
The
applicant’s counsel wrote to CIC and objected to the request for residency
obligation information, claiming it was inappropriate in light of the IAD
decision. CIC did not respond to this letter. On July 31, 2012, as a “gesture
of good faith” the applicant submitted some of the requested documents and completed
residency questionnaires to CIC.
[9]
On
August 22, 2012, the applicant filed this application for judicial review. He
is the only member of his family that is a party to the application.
[10]
CIC
issued a letter to the applicant on March 7, 2013 inviting him and his wife to
an interview on March 27, 2013 for the purpose of evaluating their compliance
with the residency obligation under paragraph 28(2)(a) of the Act.
[11]
On
March 28, 2013, CIC issued another letter indicating that it had scheduled a
final interview for the applicant on April 25, 2013, for the same purpose. The
letter indicated that should the applicant and his wife not attend the
interview, their five-year PR cards would be sent to the Case Processing Centre
in Sydney for destruction.
[12]
On
April 3, 2013, the applicant’s lawyer indicated that an interview should not be
scheduled before the Federal Court had the chance to adjudicate whether CIC’s
reopening of the residency issue was inappropriate and contrary to the law. In
light of these concerns, CIC rescheduled the interview to June 11, 2013.
[13]
According
to the respondent, CIC is in the process of deciding whether to issue the
applicant a five-year PR card or a one-year PR card along with a subsection
44(1) report.
Ms. White,
a supervisor at CIC, states in her affidavit that 6 to 18 months is a
reasonable amount of time for a CIC officer to decide whether to issue a
five-year or one-year PR card where the officer is investigating concerns that
may give rise to a subsection 44(1) report. In the present case, the concerns
leading to the investigation arose nearly 12 months ago on June 26, 2012, the
date the applicant was questioned by the CBSA at the Vancouver airport.
* * * * * * * *
[14]
The
provisions of the Act that are most relevant to the present case are:
|
15.
(1) An
officer is authorized to proceed with an examination if a person makes an
application to the officer in accordance with this Act or if an application
is made under subsection 11(1.01).
…
28. (1) A permanent
resident must comply with a residency obligation with respect to every
five-year period.
(2) The following
provisions govern the residency obligation under subsection (1):
(a) a permanent resident
complies with the residency obligation with respect to a five-year period if,
on each of a total of at least 730 days in that five-year period, they are
…
(iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public
administration or the public service of a province,
44. (1) An officer who
is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report
shall be transmitted to the Minister.
…
|
15. (1) L’agent peut
procéder à un contrôle dans le cadre de toute demande qui lui est faite au
titre de la présente loi ou qui est faite au titre du paragraphe 11(1.01).
…
28.
(1) L’obligation
de résidence est applicable à chaque période quinquennale.
(2) Les
dispositions suivantes régissent l’obligation de résidence :
a) le résident permanent se
conforme à l’obligation dès lors que, pour au moins 730 jours pendant une
période quinquennale, selon le cas :
…
(iii)
il travaille, hors du Canada, à temps plein pour une entreprise canadienne ou
pour l’administration publique fédérale ou provinciale,
44. (1)
S’il
estime que le résident permanent ou l’étranger qui se trouve au Canada est
interdit de territoire, l’agent peut établir un rapport circonstancié, qu’il
transmet au ministre.
…
|
[15]
The
relevant provisions of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the “Regulations”) are as follows:
|
54.
(1) Subject
to subsection (2), a permanent resident card is valid for five years from the
date of issue.
(2) A permanent
resident card is valid for one year from the date of issue if, at the time of
issue, the permanent resident
(a) is subject to the
process set out in paragraph 46(1)(b) of the Act;
(b)
is the subject of a report prepared under subsection 44(1) of the Act;
(c) is subject to a
removal order made by the Minister under subsection 44(2) of the Act and the
period for filing an appeal from the decision has not expired or, if an
appeal is filed, there has been no final determination of the appeal; or
(d)
is the subject of a report referred to the Immigration Division under
subsection 44(2) of the Act and the period for filing an appeal from the
decision of the Immigration Division has not expired or, if an appeal is
filed, there has been no final determination of the appeal.
59. (1) An officer
shall, on application, issue a new permanent resident card if
(a) the applicant has
not lost permanent resident status under subsection 46(1) of the Act;
(b) the applicant has
not been convicted under section 123 or 126 of the Act for an offence related
to the misuse of a permanent resident card, unless a pardon has been granted
and has not ceased to have effect or been revoked under the Criminal
Records Act;
(c) the applicant
complies with the requirements of sections 56 and 57 and subsection 58(4);
and
(d)
the applicant returns their last permanent resident card, unless the card has
been lost, stolen or destroyed, in which case the applicant must produce all
relevant evidence in accordance with subsection 16(1) of the Act.
…
|
54. (1) Sous réserve du
paragraphe (2), la carte de résident permanent est valide pour une période de
cinq ans.
(2)
La carte de résident permanent est valide pour une période de un an si le
résident permanent, au moment de la délivrance :
a) soit fait l’objet du
processus prévu à l’alinéa 46(1)b) de la Loi;
b) soit fait l’objet d’un
rapport établi en vertu du paragraphe 44(1) de la Loi;
c) soit fait l’objet d’une
mesure de renvoi prise par le ministre en vertu du paragraphe 44(2) de la
Loi, si le délai d’appel n’est pas expiré ou, en cas d’appel, s’il n’a pas
été statué en dernier ressort sur celui-ci;
d) soit dont
l’affaire est déférée à la Section de l’immigration pour enquête aux termes
du paragraphe 44(2) de la Loi, si le délai d’appel de la décision de la
Section n’est pas expiré ou, en cas d’appel, s’il n’a pas été statué en
dernier ressort sur celui-ci.
59.
(1) L’agent
délivre, sur demande, une nouvelle carte de résident permanent si les
conditions suivantes sont réunies :
a) le demandeur n’a pas perdu
son statut de résident permanent aux termes du paragraphe 46(1) de la Loi;
b) sauf réhabilitation — à
l’exception des cas de révocation ou de nullité — en vertu de la Loi sur
le casier judiciaire, le demandeur n’a pas été condamné sous le régime
des articles 123 ou 126 de la Loi pour une infraction liée à l’utilisation
frauduleuse d’une carte de résident permanent;
c) le demandeur satisfait aux
exigences prévues aux articles 56 et 57 et au paragraphe 58(4);
d) le demandeur rend sa dernière
carte de résident permanent, à moins qu’il ne l’ait perdue ou qu’elle n’ait
été volée ou détruite, auquel cas il doit donner tous éléments de preuve
pertinents conformément au paragraphe 16(1) de la Loi.
…
|
* * * * * * * *
[16]
The
issue in this matter is whether the applicant has met the conditions for a mandamus
order.
[17]
While
the applicant submits that he has met all of the conditions set out in Liang
v The Minister of Citizenship and Immigration, 2012 FC 758 [Liang]
for the granting of a mandamus order, the respondent argues that this is
not the case and that the request for mandamus is premature.
* * * * * * * *
Analysis
[18]
The
parties agree that as Mr. Justice Rennie recently affirmed in Liang, at
paragraph 24, the test for mandamus in an immigration context includes the
following criteria:
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. Where the duty
sought to be enforced is discretionary, the following rules apply:
(a) in exercising a discretion,
the decision-maker must not act in a manner which can be characterized as “unfair”,
“oppressive” or demonstrate “flagrant impropriety” or “bad faith”;
(b) mandamus is
unavailable if the decision-maker’s discretion is characterized as being “unqualified”,
“absolute”, “permissive” or “unfettered”;
(c) in the exercise of a “fettered”
discretion, the decision-maker must act upon “relevant”, as opposed to “irrelevant”,
considerations;
(d) mandamus is
unavailable to compel the exercise of a “fettered discretion” in a particular
way; and
(e) mandamus is only
available when the decision-maker’s discretion is “spent”; i.e., the applicant
has a vested right to the performance of the duty.
5. No other adequate
remedy is available to the applicant.
6. The order sought
will be of some practical value or effect.
7. The Court in the
exercise of discretion finds no equitable bar to the relief sought.
8. On a “balance of
convenience” an order in the nature of mandamus should (or should not) issue.
A. Whether the
conditions precedent for the issuance of a PR card are met
[19]
I
am persuaded by the respondent’s arguments that not all conditions precedent giving
rise to the public legal duty for CIC to issue a PR card to the applicant have
been met. For the reasons that follow, I do not agree with the applicant that
“the time of issue” in subsection 54(2) of the Regulations means the time that
the requirements of subsection 59(1) of the Regulations are met.
[20]
First,
I am convinced that what is meant by “the time of issue” in paragraph 54(2)(b)
is the time CIC actually provides the card to an applicant. As Justice Zinn
stated in Khan v The Minister of Citizenship and Immigration, 2012 FC
1471, [Khan] at paragraph 20:
[20] This
submission turns on when a PR Card is issued and by whom. I agree with the
respondent that the PR Card had been processed by CPC-S but that it had not yet
been issued to Mr. Khan. The issuing of a PR Card requires the transmitting
to or delivery of the card to the applicant. That did not happen at CPC-S;
it was to happen at CIC GTA Central when Mr. Khan arrived to take possession of
his new card. Accordingly, I reject the submission that the officer at CIC GTA
Central was functus. This is not to suggest that there were no
limitations on the officer’s obligation to hand over the PR Card to Mr. Khan.
[Emphasis
added]
[21]
Second,
I would agree with the respondent that the issue of whether an officer
undertaking a 44(1) investigation will ever prepare a 44(1) report is unrelated
to the question of whether paragraph 54(2)(b) could apply in the
applicant’s circumstances. Given that CIC has stated it intends to issue the
applicant a PR card, the issue is whether the applicant is entitled to a one-year
card or a five-year card.
[22]
Third,
I would agree with the respondent that the principles set out in Khan,
above, do not preclude the possible application of paragraph 54(2)(b) in
the present case. Justice Zinn stated the following at paragraph 40 of that
decision:
[40] The
respondent, however, submits that the officer at CIC GTA Central was obliged to
withhold the PR Card unless satisfied that Mr. Khan met the residency
obligation. That is in error because meeting the residency obligation is not
a condition for issuing the PR Card set out in subsection 59(1) of the
Regulations. Further, notwithstanding the statement in the form letter sent
to those who are to pick up their new PR Card that “According to the Immigration
and Refugee Protection Act, all permanent residents of Canada are subject to a residency assessment at the time of distribution of their new PR
card,” there is no such requirement in the Act. It is most certainly within the
prerogative of the respondent to confirm at the time of pick up or at any other
time that a permanent resident satisfies the residency obligation; however
there is no legislated requirement that it be done at the time of the PR Card
pick up and such an examination cannot impede the issuance of the PR Card.
[Emphasis
added]
[23]
The
Court
in Khan did not turn its mind to the question of subsection 54(2)
exceptions to the issuance of a five-year PR card. Therefore, in my opinion it
would not be contradictory with that decision to find that an officer may
inquire into whether a paragraph 54(2)(b) exception applies before
issuing a PR card.
[24]
Accordingly,
in my view paragraph 54(2)(b) could still apply to the applicant once
the officer completes her 44(1) investigation. Thus, not all conditions
precedent for the issuance of a five-year PR card are met, and the third
criterion of the Liang test, above, is not established.
B. Whether
there has been an unreasonable delay in deciding whether to issue the applicant
a five-year or one-year PR card
[25]
Given
that I believe paragraph 54(2)(b) of the Regulations is not precluded
from applying in the applicant’s circumstances, the appropriate timeframe by
which to measure the reasonableness of the delay in issuing the applicant his
PR card is the time it reasonably takes for a CIC officer to decide whether to
issue a five-year or one-year PR card where the officer is investigating
concerns that may give rise to a subsection 44(1) report.
[26]
Ms.
White, a supervisor at CIC, states in her affidavit that 6 to 18 months is a
reasonable amount of time for a CIC officer to decide whether to issue a
five-year or one-year PR card in such circumstances.
[27]
The
concerns leading to the investigation in the present case arose nearly 12 months
ago on June 26, 2012 (the date the applicant was questioned by the CBSA when he
arrived at the Vancouver airport).
[28]
Since,
as noted by the respondent, the Minister and CIC are best placed to know the
reasonable timeframe for the completion of the investigation (Liang,
above, at para 41) and CIC is still within the reasonable timeframe for making
a decision of this nature, I find that a mandamus order would be
premature in this case.
* * * * * * * *
[29]
For
the above-mentioned reasons, the request for a mandamus order is denied
and the application for judicial review is dismissed.
[30]
Upon
considering the parties’ submissions on the question of certification, the
following question is certified:
In
light of subsections 54(2) and 59(1) of the Immigration and Refugee Protection
Regulations, SOR/2002-227, where an applicant is not the subject of a
report prepared under subsection 44(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 at the time he or she is sent a letter to
pick up his or her permanent resident (“PR”) card at a scheduled time (“the
pick up date”), but before the pick up date new concerns arise leading to an
investigation under subsection 44(1), is there a legal duty to issue a
five-year PR card to the applicant on the pick up date even if the investigation
under subsection 44(1) is incomplete?
JUDGMENT
The request for a mandamus
order is denied and the application for judicial review is dismissed. The following
question is certified:
In
light of subsections 54(2) and 59(1) of the Immigration and Refugee
Protection Regulations, SOR/2002-227, where an applicant is not the subject
of a report prepared under subsection 44(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 at the time he or she is sent a letter to
pick up his or her permanent resident (“PR”) card at a scheduled time (“the
pick up date”), but before the pick up date new concerns arise leading to an
investigation under subsection 44(1), is there a legal duty to issue a
five-year PR card to the applicant on the pick up date even if the
investigation under subsection 44(1) is incomplete?
“Yvon Pinard”
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