Docket:
IMM-977-13
Citation: 2014 FC 322
Ottawa, Ontario, April 2, 2014
PRESENT: The Honourable Mr. Justice Annis
|
BETWEEN:
|
|
ABBAS FARIBORZ MAZAREI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application by 63 applicants (the applicants)
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] for judicial review of the respondent’s failure to
render a decision with respect to their applications for permanent residence in
the Quebec Investor class. The applicants request an order in the nature of a mandamus
requiring the respondent to render a final decision on their applications
within a specific time-frame not exceeding one year.
BACKGROUND
[2]
The 63 applicants who are party to this judicial
review are all investors who were selected by the province of Quebec for immigration purposes. In order to be selected, they were required to make an
investment of $400,000 with a designated financial intermediary of the Investor
Program, which they did between August 2010 and February 2012. Pursuant to
making this investment, the applicants were issued a Certificat de Sélection
du Québec by the Ministère de l’Immigration et des Communautés Culturelles
confirming that they met all the conditions to be duly selected as an
Immigration Investor by the province of Quebec.
[3]
As a result, the applicants submitted Permanent
Residence applications to the Visa and Immigration Section of the Canadian
Embassy of Damascus in Syria between April 2010 and December 2011.
[4]
On January 31, 2012, the Canadian Embassy in Damascus closed due to civil strife. The applicants’ files were redistributed to the visa
office in Ankara, Turkey. Approximately 22,000 permanent resident files were
transferred from Damascus to Ankara, including 7,687 files that needed
adjudication. The transfers began in February 2012 but problems with customs in
Syria and Turkey delayed the process. The physical transfer of all files was
completed in May 2012.
[5]
On April 29, 2012, the Visa and Immigration
Section in Tehran, Iran, closed and 50,000 temporary resident files were also
transferred to Ankara, including 8,100 that needed adjudication.
[6]
During the spring and summer of 2012 resources in
Ankara were shifted to hasten the processing of temporary resident
applications during the peak summer season. The objective was to reduce the
resources for processing economic applications in order to address priority
applications in other categories, such as business, refugee, family class and
temporary residents.
[7]
The Ankara office also hired 17 new staff
members in order to deal with the increased workload. Visa officers with
decision-making ability were involved in the hiring and training process.
[8]
Since the filing of their permanent residence
applications, the applicants have not received a decision from the respondent.
DECISION UNDER REVIEW
[9]
This application was brought after a request was
filed by the applicants pursuant to Rule 9 of the Federal Courts Immigration
and Refugee Protection Rules, SOR/93-22. The applicants made a request
under Rule 9 and received a response from the Respondent dated February 13,
2013 stating that no decision had been made on their application under the
Quebec Investor Program.
ISSUE
[10]
I find that the determinative issue in this
application is whether there is a satisfactory justification for the delay in
processing the applicants’ application for permanent residence.
APPLICANTS’ SUBMISSIONS
[11]
The applicant contends that the excessive nature
of a delay can only be understood in light of the particular circumstances of a
situation. He argues that Justice Snider, in Vaziri v Canada (Minister of Citizenship and Immigration), 2006 FC 1159 [Vaziri], made
clear that there is no fixed length of time according to which a delay must be
considered unreasonable. Justice Tremblay-Lamer set out the criteria for the
determination of whether a delay is unreasonable in Conille v Canada (Minister of Citizenship and Immigration), [1999] 2 FC 33, [1998] FCJ No 1553 at
para 23 [Conille]:
(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.
[12]
The applicant argues that the delay in question
is particularly unreasonable in light of the fact that once processing of the
application begins, eligibility, security and medical assessments will have to
be carried out, further prolonging the process. As a result, it is the
“numerous months still to come” that the applicant alleges is unreasonable and
warrants the issuance of a mandamus.
[13]
In addition, the applicant argues that because
applicants are required to comply with fixed time delays, the same obligation
should be incumbent upon the respondent.
[14]
The applicant also argues that the closure of
the Canadian Embassy in Damascus cannot serve to explain or justify the delay
the applicants are facing. This argument appears to have two bases: firstly,
the only measure the respondent took to address the increased caseload in
Ankara was the hiring of 17 additional staff, a clearly inadequate
measure; and secondly, the closure of the Damascus and Tehran offices have
created an increased workload at the Canadian Embassy in Ankara, and as Justice
Kelen stated in Dragan v Canada (Minister of Citizenship and Immigration),
2003 FCT 211, [2003] 4 FC 189 at para 58 [Dragan], an enormous
workload cannot be used as an excuse for the delay in processing a valid claim,
which claim would have been accepted but for the delay and change in
legislation.
[15]
The applicant also alleges that the applicants
in question have suffered great prejudice from the delay in the processing of
their applications in that they have had to freeze $400,000 each since they
complied with the investment requirement.
[16]
Forty-four of the 63 applications for leave are
from Iranian citizens. The Special Economic Measures (Iran) Regulations, SOR/2010-165, make it extremely difficult for Iranian citizens to transfer
money to financial institutions in Canada. Further, Iranian rials have lost
two-thirds of their value since the applicants submitted their applications.
All this means that the applicants’ assets have significantly decreased in
value while they have been waiting for the processing of their applications.
[17]
The applicant alleges that, in consideration of
the criteria for granting a mandamus, there is no alternative way to
remedy the situation.
[18]
The applicant further alleges that the argument
that granting a mandamus would be allowing him to “jump the queue” is
baseless since this would deprive a mandamus of its very essence.
[19]
In closing, the applicant alleges that the
balance of convenience supports his application.
[20]
Finally, the applicant requests costs, citing Platonov
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1438, 192
FTR 260; and Ben-Musa v Canada (Minister of Citizenship and Immigration),
2005 FC 764, [2005] FCJ No 942 .
ANALYSIS
[21]
The applicants and respondent agree that the
test for the issuance of a mandamus was established in Apotex Inc v Canada (Attorney General), [1994] 1 FC 742 [Apotex]. The Apotex test was
restated by the Federal Court of Appeal in Canada (Attorney General)
v Arsenault, 2009 FCA 300 as the following:
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 a
prior demand for performance of the duty, a reasonable time to comply with the
demand, and a subsequent refusal which can be either expressed or implied;
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 its discretion finds no equitable bar to the relief sought:
8. On a “balance
of convenience” an order in the nature of mandamus favours the applicant:
[…]
[Emphasis in
original]
[22]
The most contentious issue for our purposes is
the second element – that there has been a ‘reasonable time’ to comply with the
duty.
[23]
What, then, constitutes a ‘reasonable time’? As
the applicant himself points out, the jurisprudence of this Court has
established that, in the evaluation of the length of a delay, no particular
fixed delay can be applied uniformly. Rather, an evaluation must be made in the
particular circumstances (Vaziri, cited above, at para 48; Dragan,
cited above, at para 55).
[24]
Also as pointed out by the applicant, Justice
Tremblay-Lamer in Conille (cited above) established some helpful
criteria for evaluating a delay. In this case, regardless of the analysis
carried out under the first two Conille criteria (that the delay in
question be longer than the nature of the process required, and that the
applicant and his counsel not be responsible for the delay), the applicants
would clearly fail at the third step, that the authority in question provide
satisfactory justification for the delay.
[25]
The respondent has provided ample explanation
for the delay: that the Canadian Embassy in Damascus closed due to the civil
strife in Syria, and that the Visa and Immigration Section of the Canadian
Embassy in Tehran subsequently closed, such that all the permanent resident
applications at these respective embassies were transferred to the Canadian
Embassy in Ankara, which was extremely overburdened as a result. These circumstances
constitute an extraordinary situation.
[26]
The respondent further explained that 17 new
staff were hired to deal with the increased workload, more than doubling the
number of staff at the Canadian Embassy in Ankara; previously there were 16
staff members. However, the hiring of new staff entailed training, further
straining the resources at the Embassy in Ankara. This would appear to indicate
that the respondent acted in good faith in an attempt to deal with the
situation.
[27]
This context is very important, as was made
clear by Justice Snider in Vaziri (cited above), who stated the
following at paras 53-55:
[53] There are
two ways to look at whether the delay has been longer than the nature of the
process required. The first way is to consider a PR application in a vacuum,
without considering whether it relates to a parent or grandparent or to someone
from another class. In that case, the deliberate delay at the sponsorship stage
and at the beginning of the PR application stage clearly extends the amount of
time required to process the Applicants’ applications beyond the time strictly
necessary to assess the applications.
[54] On the
other hand, if one takes a wider and more detailed view, then the length of
time taken is within the time that the nature of the process requires, because
there are simply too many applications for Canada to allow them all, resulting
in annual levels being set. Even among the number of applications that can be
allowed within a given year, the Minister must discriminate between the classes
in order to meet the goals of IRPA and the explicit policies of the Government.
In this context, applications relating to parents and grandparents require a
longer time to process than most other PR applications. The nature of the
process is longer.
[55] I prefer
the latter view. The “nature of the process” must be informed by a full
understanding of where the Applicants’ applications fit within the immigration
scheme. It is inherent in the system, as currently constituted, that some PR
applications are processed differently than others. FC4 applications are
processed slower, in accordance with policies. Therefore the length of time
taken to process the Applicants’ files must be viewed in light of this longer
process. Upon the evidence before me, then, it does not seem that the delay to
date – between 3 and 4 years – is excessive. It would appear that this is in
accordance with the expected times to process FC4 applications that were filed
in 2003. Indeed, the Respondent indicates that the Applicants’ files are
expected to be completed sooner than would be expected, since the rate of PR
applications being received in the last year or two is lessening.
[28]
As a result, as Justice Snider underscores, the
applicants’ applications must be understood within the immigration scheme. As
the respondent explained, a choice was made mid-2012 to reduce resources for
economic applications in order to process priority applications in the
business, refugee, and family class, as well as temporary resident
applications, which was certainly an understandable choice in the context of a
vicious civil war. As Justice Snider points out, it is inherent in the system
that some permanent resident applications are processed differently than
others.
[29]
The applicants relied upon Dragan (cited
above) and Meikle v Canada (Minister of Citizenship and
Immigration), [1997] FCJ No 1274, 137 FTR 304 for the proposition that a mandamus
cannot be refused solely because a 20-month delay is deemed “premature”.
The circumstances in those two instances are quite different than the case at
bar. Meikle concerned a deportation order on the basis of criminality,
and the issue was whether there had been a breach of a principle of natural
justice or procedural fairness for failing to process the applicant's notice of
appeal for almost two years, thus precluding an appeal. Dragan concerned
a legislative change that occurred while a group of applicants were waiting for
their permanent resident applications to be processed, and which affected the
rights of those applicants such that they were treated differently because of
the delay and the change in the system that occurred in the meantime.
[30]
In this case, it has been less than four years
since the first applications were filed for permanent residence from the group
of 63 applicants. There is no reason to believe that their applications will
not eventually be processed and accepted. On the contrary, as the respondent
pointed out, in 2013 the Ankara office reached its target of finalizing 300
applications in the Quebec Investor class.
[31]
Finally, it must be noted that maintaining the
integrity of the system requires consideration of the inequitable impact of
allowing a mandamus application on other applications for permanent
residence.
[32]
The evidence indicates that the applicant’s
application was preceded by 519 to 523 applications for permanent residence as
of June 4, 2013. If his application were allowed, in essence the applicant
would be allowed to “jump the queue,” thereby violating the fundamental rule of
fairness by which the processing of applications occurs in order of the date of
their filing.
[33]
Justice Phelan, in Agama v Canada (Minister of Citizenship and Immigration), 2013 FC 135 at paras 20-21, remarked that it
would be inequitable to grant a similar application considering the impact of
his decision on other applicants who were also waiting for processing:
[20] In applying
the fairness principle, it is relevant in this case to look at the impact of
the Applicant’s position vis-à-vis others. All those persons who filed after
September 19, 2011 but before the Applicant would have just as legitimate
complaint as the Applicant. Since they were prior in filing time, their
applications would have priority over the Applicant.
[21] Even if
there was some basis for the Applicant’s position, it would not be equitable to
grant relief without addressing the situation of these other applicants.
[34]
As a result, I find that the applicant has not
demonstrated that the delay is unreasonable, and the granting of a mandamus is
not merited in the circumstances.
[35]
The applicant submitted the following question
for certification:
“If an applicant
successfully establishes that he is entitled to the issuance of a writ of mandamus
considering all the circumstances put forward in his case, should the potential
impact of the issuance of the relief on other individuals who are not part of
the application prevent the Court from granting the mandamus to the
applicant?”
[36]
In order to certify a question for appeal, a
question must be (i) dispositive of the appeal and (ii) transcend the interests
of the immediate parties to the litigation, as well as contemplate issues of
broad significance or general importance (Zhang v Canada (Minister of Citizenship
and Immigration), 2013 FCA 168). The proposed question is not dispositive
of the issue, as there are other factors influencing the outcome, including the
actions taken by the respondent in response to the delay and the causes for the
delay. As a result, the question proposed by the applicant does not merit
certification.
[37]
These Reasons for Judgment and Judgment will
apply to all the files indicated in Annex A, attached.
Email this Content