Docket:
IMM-4628-13
Citation:
2014 FC 399
Ottawa, Ontario, April 30,
2014
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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NAGY WAGDY MOHAMED METWALY MOBASHER
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the Act) of the respondent’s failure to process and
render a decision with respect to the applicant’s application for permanent
residence in the investor category. The applicant seeks an order of mandamus
requiring the respondent to process and render a final decision on his
application.
I.
FACTS
[2]
The applicant is a citizen of Saudi Arabia. His application for permanent residence in Canada under the investor category was
received at the Canadian High Commission in London, United Kingdom (CHC) on
March 22, 2010. The applicant’s wife and four children are included in the
application. The applicant has not yet received a decision from the respondent.
[3]
In April 2010, the applicant received a letter
from CHC informing him that his application had been received. The letter
indicated that the processing period at the time was estimated to be 12 to 18 months
but that this was based on the current inventory of applications and that
processing times may vary as a result of changes to the inventory. The letter
further indicated that CHC will send a list of required documents to be
returned within four months.
[4]
On September 1, 2010, CHC sent a letter to the
applicant requesting that the remaining supporting documents be submitted.
[5]
On November 25, 2010, CHC received from the
applicant the remaining documents required to assess his application.
[6]
In February, 2012, the applicant’s immigration
consultant wrote to CHC requesting an update on the status of the file.
[7]
On March 8, 2012, CHC informed the applicant
that its workload had increased which impacted the usual processing times
greatly, that applications were being processed in chronological order from the
date of receipt, and that “it may be some time yet” to process his application.
[8]
On July 10, 2012, October 9, 2012, and February
26, 2013, CHC replied to enquiries from the applicant’s consultant informing
him that the application was currently in a queue awaiting review, that
processing delays continued, and that average processing time frames are based
on an average only, and were not a guarantee.
[9]
On July 9, 2013, the application was paper
screened and assigned to an immigration officer for review.
A.
Changes to the federal Immigrant Investor
Program
[10]
Several important changes were made to the
federal Immigrant Investor Program (IIP) after the applicant submitted his
application, as detailed in He v Canada (Minister of Citizenship and
Immigration), 2014 FC 92 at paras 4-9 [He] and the six companion
cases that follow.
[11]
Ministerial Instructions published on June 26,
2010 stated that investor permanent resident applications received after the
coming into force of upcoming changes to the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations) would be
processed concurrently with the old inventory. The Instructions also set an
administrative pause on the acceptance of applications until the changes to the
Regulations were made.
[12]
On December 1, 2010, subsection 88(1) of the Regulations
was amended to raise the “investment” required for an investor candidate from
$400 000 to $800 000.
[13]
The Operational Bulletin 252, published December
2, 2010, established a ratio for the processing of applications, providing that
as a general rule, for every two “old” $400 000 applications received before
December 1, 2010, the respondent must process one “new” $800 000 application
received on or after December 1, 2010.
[14]
The Ministerial Instructions published July 1,
2011 introduced a cap of a maximum of 700 new federal immigrant investor
applications to be considered for processing each year.
[15]
Finally, in the Ministerial Instructions
published on July 1, 2012, a second administrative pause on accepting new
immigrant investor applications was put into place, a pause that remains in
effect to this date.
II.
ISSUE
[16]
The issue before this Court is whether the delay
in processing this application is longer than the nature of the process
requires and whether there is a justification for the delay.
III.
ARGUMENTS OF THE PARTIES
[17]
Both parties agree on the legal test for
granting on order of mandamus as that set out in Apotex Inc v Canada
(Attorney General), [1994] 1 FC 742 (FCA), aff’d [1994] 3 S.C.R. 1100 [Apotex].
This test is well-known and does not need to be repeated, as the present case
turns on the nature of the delay in question.
[18]
The test for determining whether a delay is
unreasonable in the immigration context is established in my decision in Conille
v Canada (Minister of Citizenship and Immigration), [1999] 2 FC 33 at para
23 [Conille] as being:
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.
[19]
On the one hand, the applicant submits that
paragraph 3(1)(f) of the Act referring to prompt processing of
applications and consistent standards applies to the present case. It has been
recognized that the respondent has a public duty to process and decide
immigration applications (Liang v Canada (Minister of Citizenship and
Immigration), 2012 FC 758 at para 25 [Liang]). The delay in the
treatment of the applicant’s application, currently standing at 49 months, is
unreasonable as it far exceeds what the nature of the process requires (Conille).
The applicant underscores that no action has been taken on his file other than
the opening of an envelope, acceptance of the $400,000 investment as security
to be held without interest, and the assignment of his file more than three
years later.
[20]
The applicant distinguishes the present case
from the facts in He. While in He, there were no processing time
estimates provided, here the applicant was notified in 2010 that the estimated
processing period was 12 to 18 months. The applicant acknowledges that these
representations were not unqualified; however, he submits that the
representations made by the respondent on the delay it expects to take to
process the application constitute a valid indication of the normal delay
required for the processing of applications of that nature (Liang at
paras 28-31, 33, 37, 41). Boiler-plate statements such as “or longer”, “several
months after”, and “we cannot tell” should not be taken as insurance against an
order of mandamus.
[21]
Further, the applicant argues that the
respondent’s justifications for the delay cannot succeed, since they are of its
own making (Liang at paras 39, 40, 45; Esmaeili-Tarki v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 697 at paras 14,
15). Allowing such an excuse would be contrary to the rationale that one cannot
plead one’s own turpitude. The present case can be distinguished from the “extraordinary
situation” in Mazarei v Canada (Minister of Citizenship and Immigration),
2014 FC 322 at paras 25, 26 where the processing of applications was delayed by
the political situations in Iran and Syria, and where there was evidence that
the respondent had taken measures to deal with the situation, including hiring 17
new staff members.
[22]
On the other hand, the respondent submits that
the applicant has not shown that all of the requirements for the issuance of a mandamus
have been met in the present case. The respondent has never refused to act on the
application and has continuously done all that it reasonably could to fulfill
its obligation to process the application. The applicant’s application is in
active process and has been advanced diligently, as seen from the fact that
several steps in the process have occurred and his position in the queue of
applications has advanced. The processing of the applicant’s file is thus far
consistent with the processing of investor applications at CHC and the current
average processing time for such applications is 56 months. Further, any longer
than expected delay can be explained by the fact that CHC has had to deal with
increased inventory, backlog, and processing delays due to prevailing
circumstances beyond its control.
[23]
The respondent further argues that no legitimate
expectations of a certain processing timeline or a specific time for a decision
were created nor proffered by the respondent. The estimate of a processing time
of 12 to 18 months communicated to the applicant was not clear, unambiguous,
and unqualified, was based on information at that time, and thus cannot serve
to establish processing time in any individual case. The introduction of
concurrent processing of new applications by the Minister clearly increases the
length of time the applicant’s case will be outstanding, however these
guidelines are entirely authorized by law. Being subject to such a wait does
not give a person an action for mandamus (He at paras 28, 29; Vaziri
v Canada (Minister of Citizenship and Immigration), 2006 FC 1169 at paras
36, 37). Granting this application for mandamus would in essence be to
allow the applicant to jump the queue of all similarly situated applicants
whose applications were filed before his, which would be fundamentally unfair (Agama
v Canada (Minister of Citizenship and Immigration), 2013 FC 135 at paras
20-22 [Agama]).
IV.
ANALYSIS
[24]
The central question before this Court is that
of determining whether the processing time of the applicant’s application is
reasonable. With respect to the first factor in Conille, an evaluation
of whether the delay in processing the application is longer than the nature of
the process requires must be informed by a full understanding of the larger
immigration scheme (Vaziri at paras 53-55). At para 55 of Vaziri,
Justice Snider specifies, “It is inherent in the system, as currently
constituted, that some PR applications are processed differently than others”.
[25]
In the present case, according to the September
20, 2013 affidavit of the Immigration Officer, CHC finalized approximately 162
federal business applications between January and August of 2013, 220 in 2012
and approximately 285 in 2011. CHC’s current average processing time for
federal investor applications is 56 months, according to the Immigration
Officer’s February 24, 2014 affidavit. The applicant’s delay, which currently
stands at 49 months, is thus in accordance with this average.
[26]
Here, the longer delay must be situated in the
changes made to the IIP, including the enactment of a 2:1 processing ratio of
old to new applications and a processing cap of 700 new applications per year.
Coupled with these changes, CHC has had to deal with an increased inventory of
applications to be processed arising from several factors beyond its control:
the spike in applications in the lead up to the regulatory changes of December
2010, the taking over of responsibility for the processing of investor
applications from the Islamabad visa office, and the labour dispute resulting
in the withdrawal of service by Foreign Service Officers. Together, these
circumstances serve as a reasonable explanation for the current backlog in
processing applications, and thus satisfy the third part of the Conille
test of a satisfactory justification for the delay.
[27]
I agree with my colleague Justice Richard Boivin
at para 28 of his decision in He dealing with similar facts, where he
stated, “The Court can understand that the applicant might be discontent with
the current IIP scheme because of its place in the queue, but it was legally
set out and implemented in full contemplation of the law, more particularly of
the powers adopted by Parliament pursuant to the new section 87.3 of the Act.”
[28]
In the present case, I am satisfied that despite
a slow start, the processing of the application is currently proceeding at a
normal pace, taking into account the changes to the IIP. As pointed out by the
respondent, the applicant’s file is presently active. It has advanced from
being at the midpoint of approximately 200 applications that had been
paper-screened and were awaiting review in September, 2013, to currently having
21 applications before it in the queue of paper-screened applications pending
review.
[29]
In such a case, the intervention of the Court is
not warranted, and would only result in the inequitable outcome of allowing
this application to jump the queue ahead of other applications that are also
awaiting processing but are ahead of the applicant in the queue (Agama
at paras 20, 21).
[30]
I am also not convinced that the respondent’s
estimate of 12 to 18 months constituted the sort of “clear, unambiguous and
unqualified” statement that would engage the doctrine of legitimate
expectations (Agraira v Canada (Public Safety and Emergency Preparedness),
2013 SCC 36 at para 95; Canada (Attorney General) v Mavi, 2011
SCC 30 at para 68 [Mavi]). In Mavi, Justice Binnie explained the
meaning of this standard through a reference to the law of contracts, stating
at para 69, “Generally speaking, government representations will be considered
sufficiently precise for purposes of the doctrine of legitimate expectations
if, had they been made in the context of a private law contract, they would be
sufficiently certain to be capable of enforcement.”
[31]
In the present case, the original estimate of 12
to 18 months was qualified with the statement that it was based on the current
inventory of applications and that processing times may vary as a result of
changes to the inventory. Correspondence from the respondent in 2012 and 2013
notified the applicant that CHC had taken over the processing of applications
from the Islamabad offices, resulting in a larger than normal volume of
applications, and that it “may be some time yet” before the application is
processed. The applicant was also informed that average processing time frames
for applications are “based on an average only, and not a guarantee”.
Furthermore, it is important to note that unlike in Liang, there is no
processing estimate set out in the guidelines and regulations affecting the
current application. The respondent stating that the 2010 average processing
time was 12 to 18 months does not give rise to a legitimate expectation of a
certain processing time for the applicant, particularly given the changes to
the IIP enacted since then.
[32]
For these reasons, the Court’s intervention is
not warranted and the application for judicial review is dismissed.
[33]
Unlike in He, the applicant in the
present case does not wish to have a question certified.
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