Docket: IMM-4845-14
IMM-4614-14
Citation: 2015 FC 740
Ottawa, Ontario,
June 12, 2015
PRESENT: The Honourable Madam Justice McVeigh
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BETWEEN:
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ROBERT MOSCICKI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT
[1]
The Applicant brought an application for
judicial review of the decision of the Immigration Division of the Immigration
and Refugee Board (“the Board”) dated May 8, 2014, where the Board found the
Applicant inadmissible under subsection 36(1)(b) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (“IRPA”) for serious criminality (IMM-4845-14).
That judicial review application was combined with IMM-4614-14, where the
Applicant sought declaratory relief against Citizenship and Immigration Canada
(“CIC”) for a failure to conclude the Applicant’s alleged 1989 application for
permanent resident (“PR”) status as an un-accompanied minor child of his
father. The facts are generally common for both files.
[2]
Both decisions were dismissed on December 11,
2014, without costs.
I.
Background
[3]
The Applicant is a citizen of Poland. He was 17 years old when he arrived in Canada on October 18, 1989. The Applicant was sponsored
as a dependent son by his father who arrived approximately one year earlier. The
Applicant says his father became a landed immigrant on March 24, 1989. The
Applicant’s two younger siblings have always remained in Europe.
[4]
In March 1992, the Applicant was charged and on
September 28, 1992, convicted of “attempted residential burglary” in Cook
County, Illinois, United States. He was sentenced on January 22, 1993, to serve
five years imprisonment and given time served credit of 317 days. When his
sentence was completed in the United States, the Applicant was deported to Poland from the United States but he returned to Canada on August 9, 2008 at Toronto Pearson International Airport. When he arrived back in Canada, he was admitted on a Polish
passport with a temporary resident visa (“TRV”) for six months.
[5]
In February 2010, the Applicant applied for
Canadian citizenship but was rejected on June 3, 2013. CIC stated there was no
indication that he was lawfully admitted to Canada for permanent residence.
Because of his citizenship application, he came to the attention of the CBSA
and the immigration task force. The Applicant was investigated and CBSA referred
him under a section 44 report on February 12, 2014. As a result, CBSA issued an
arrest warrant and when the Applicant was arrested in February 2014, CBSA
determined he was a flight risk and detained him. At his admissibility hearing,
the Board found the Illinois provision for “attempted residential burglary” to
be equivalent to the Canadian criminal code provision for “attempt break and
enter”. The Applicant testified that his role in the crime was that he was
sitting in a car outside a house that his companions were in the process of
breaking into. The Board determined that he was a foreign national inadmissible
for serious criminality and issued a deportation order for the Applicant.
[6]
The FOSS notes indicate that the file relating
to the Applicant’s 1989 application was destroyed in 2008 in the normal course
of business. CIC has no further records for the Applicant other than FOSS notes.
The FOSS notes show that the Applicant was sponsored by his father and accepted
in principle for processing of permanent resident status while in Canada with work authorization. In 1991, the FOSS notes indicate that “AIP in process
still”. No further remarks appear until February 2011 when he requested welfare
and again in September 2012 when it is documented he requested welfare again.
[7]
The FOSS notes show that the Applicant was
eligible for a Pre-Removal Risk Assessment (“PRRA”) on April 10, 2014, but did
not file an application.
[8]
To further his position he is a permanent
resident he states:
- his dad picked up his PR card in 1991;
- he never received a refusal letter from
CIC;
- he was issued a social insurance number
(beginning with the number 5 indicating his landed immigrant status); and
- he has a Ontario Health Card where his
status is listed as “landed immigrant”.
II.
The Board’s Decision on Equivalence
[9]
The Board rendered an oral decision following
the admissibility hearing and found that the Applicant was inadmissible
pursuant to section 36(1)(b) of the IRPA. The Board found that while the
Applicant claimed to be a PR of Canada, he was unable to produce any objective
evidence of his status. The Minister produced an email from CBSA to CIC that
showed there was no record of PR status or any other lawful status in Canada for the Applicant. As well, the Respondent provided the June 2013 rejection letter
from CIC which indicated the Applicant’s lack of status.
[10]
The Board noted that the Applicant pled guilty
and was convicted of attempt residential burglary on September 28, 1992. The
Board concluded that there are reasonable grounds to believe that he was
convicted of the Illinois offence.
[11]
With respect to equivalence, the Board recited
the Illinois provision and section 24(1) (attempts) of the Canada Criminal
Code, RSC 1985 c C-46 (“Code”) and found the wording of the attempt statutes
to be “virtually identical”. The Board noted they both referred to intention,
commission of an offence and for acts committed for the purpose of carrying out
that intention. The Board referred to section 463 of the Code, where there is a
fourteen year sentence for an attempt of an indictable offence punishable with
life.
[12]
Finally, the Board compared the provisions for
residential burglary in Illinois and “break and enter” section 348 of the Code
in Canada. The Board determined that both offences refer to a dwelling place or
house, both refer to breaking and/or entering, which is to enter without
authority; both refer to intention to commit the offence and found that the
elements of the provisions are equivalent. Section 348 is an indictable offence
punishable by up to life sentence. In sum, the Board found there are reasonable
grounds to believe that the Applicant is an inadmissible foreign national as
contemplated by the IRPA and issued a deportation order.
III.
Issues
- Is the Board’s
equivalence analysis reasonable?
- Should CIC be
ordered to process the 1989 application and grant the Applicant PR status?
IV.
Analysis
A.
Equivalence Analysis
(1)
Standard of Review
[13]
The standard of review for equivalence for the
purpose of inadmissibility pursuant to subsection 36(1)(b) of the IRPA is
reasonableness (Abid v Canada (Minister of Citizenship and Immigration),
2011 FC 164 (“Abid”)). Findings of equivalence are decisions of mixed
fact and law and so attract deference (Abid at para 11).
[14]
The Applicant argues that inadmissibility
findings based on facts of an offence committed abroad are assessed on a
reasonableness standard, but that the equivalency analysis is a correctness
standard because it is a pure question of law. I disagree. The underlying act
that constitutes the foreign offence is an assessment of fact by the Board and
the subsequent equivalence is an analysis of mixed fact and law (Ulybin v Canada (Minister of Citizenship and Immigration), 2013 FC 629 at 19 (“Ulybin”)).
[15]
As described by Madam Justice Snider in Ulybin
at para 21:
21 How does the reasonableness standard
apply to the analysis in issue? It is important that the Officer carrying out
the equivalency analysis understand the elements of the comparable offence. A
failure to address one of the elements would make the analysis unreasonable.
However, the Officer's application of the facts to the Criminal Code elements
is a matter for which the Officer is owed deference by the Court. This exercise
may lead to more than one reasonable outcome, particularly when taking into
account the highly factual determination of equivalency
Emphasis added
[16]
There is divergent case law where the
equivalence analysis is characterized as a question of law attracting a
correctness review (Park v Canada (Citizenship and Immigration), 2010 FC
782 at 12). However, other jurisprudence as listed above finds that it is a
reasonableness standard. I applied Madam Justice Snider’s reasoning to use a
reasonableness standard in this case because of the fact-specific nature of the
equivalence analysis.
[17]
The equivalency analysis may be conducted by one
of three methods as described in Hill v Minister of Employment and
Immigration, [1987] FCJ No 47 (QL):
1. By
comparison of the precise wording of each statute through documents and if
available, through experts in foreign law in order to find the essential
ingredients of the offences;
2. By examining the evidence before the
adjudicator of the foreign conviction to determine if the essential elements of
the Canadian offence were established in the foreign proceeding or
3. A combination of method #1 and method #2
[18]
As Mr. Justice Roy stated in Victor v Canada (Public Safety and Emergency Preparedness), 2013 FC 979 at para 43, the three
methods are alternatives and there is no hierarchy between them. The Board must
have reasonable grounds to believe that certain facts have occurred (s. 33, IRPA);
“reasonable grounds” refers to a standard that is something more than mere
suspicion but less than the balance of probabilities standard (Mugesera v
Canada (Citizenship and Immigration), 2005 SCC 40). It is not necessary to
compare all the general principles of criminal responsibility; it is sufficient
to examine and compare the two offences, not the comparability of possible
convictions consequently the equivalence analysis does not attempt to re-try
the person (Li v Canada (Citizenship and Immigration), [1997] 1 FC 235 at
para 19 (“Li”)). It is clearly the equivalence of the offence that is
assessed, not the equivalence of the law (Steward v Canada (Minister of
Employment & Immigration), [1988] 3 FC 452 (FCA); Ngo v Canada
(Minister of Citizenship & Immigration), 2005 FC 609).
[19]
The Applicant argues that the words of the
statute are not virtually identical as the Board described. At paragraph 11 of
his submissions, the Applicant submits that the Canadian attempts provision is
broader. The differences argued by the Applicant are outlined in the following
chart:
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Canada
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Illinois
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Encompasses intention and negligent acts by
the words: “omits to do anything”
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Intentional acts only
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Requires accused to “do anything for the
purpose of carrying out the intention”
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Requires the accused to do an “act that
constitutes a substantial step toward the commission of that offence”
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Offence is made out “whether or not it was
possible under the circumstances to commit the offence”
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Offence only completed if accused commits
“act that constitutes a substantial step toward commission of that offence”
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[20]
The Applicant also argues that the equivalence
analysis between Illinois “residential burglary” provision and the Canadian
“residential break and enter” provision are inaccurate and in error.
[21]
The Applicant submitted that the Board was
required to look into the facts underlying the Illinois conviction to determine
what actually transpired in Illinois and if they constitute the essential
elements of the Canadian offence. The Applicant’s position was that the Board
was in error because she conducted her equivalence assessment only the basis of
the US conviction.
[22]
The Applicant cites Brannson v Canada
(Minister of Employment and Immigration [1981] 2 FC 141 (“Brannson”),
to demonstrate that there must first be evidence that the essential ingredients
of the Canadian provision are included in the foreign offence and secondly
there should be evidence that the circumstances resulting in the charge, count,
indictment or other document to initiate the criminal proceeding would constitute
an offence in Canada.
[23]
The Applicant also relies on Lei v Canada
(Solicitor General), [1994] FCJ No 222, where the court set that decision
aside because without evidence as to the circumstances that resulted in the US
conviction, no finding of equivalency could be made.
[24]
The Applicant submits that the Board did not
accept that during the commission of the crime in Illinois, he stayed in his
car while others broke a garage window. The Applicant argues that the Board did
not provide reasons why this version of events was not accepted and that the
failure or omission to consider the Applicant’s actions is fatal to the
equivalency assessment. The Applicant submits that his actions are in fact
equivalent to the mischief section 430 of the Code which is not an indictable
offence.
[25]
The Applicant`s position is that he should not
have been reported as inadmissible on grounds of serious criminality because
his conviction was 21 years ago and he completed his sentence at least 16 years
ago. Subsection 36(3)(c) of the IRPA provides that after a prescribed period,
the foreign national or permanent resident may satisfy the Minister that they
are rehabilitated. The Applicant does not argue that he qualifies for deemed
rehabilitation.
[26]
The Applicant submits that the Certified
Tribunal Record contains no other evidence that he was convicted of an offence
other than the United States offence. The Applicant submits that he told the
Board about his rehabilitation by saying “…I’ve been
keeping my nose clean for so many years. I just try to do good and comply with
all laws”. The Applicant submits that the Board should have been
satisfied that the Applicant was rehabilitated.
(4)
Analysis
[27]
In my view, the Board conducted the equivalence
analysis with a valid United States conviction, and evidence to support that
the conviction occurred. The Applicant submits that only meagre facts were
established by the record during the hearing and so with a very brief
description of the events that led to the conviction, it is impossible for the
Board to understand what the elements of the offence are. The standard,
however, is that there must be “…reasonable grounds to
believe” that a conviction would occur in Canada and it is not the
Board’s duty to re-try the crime with the precise facts of the events leading
to the conviction. The Board used the third method described in Hill,
above, where a combination of comparing the wording of the provisions
and evidence of the facts of the conviction to determine that there was
equivalence.
[28]
The key point is that it is not necessary for
the Board to determine whether there was sufficient evidence for an actual
conviction in Canada. It is whether there are reasonable grounds to
believe that the Applicant would be convicted if the same act were
committed in Canada. Consequently, the equivalence is between the provisions
and not the comparability of possible convictions. Furthermore, the equivalence
analysis allows for different statutory wording (Brannson, above).
[29]
From my reading of the Board’s decision, method
three from Hill was used to find equivalence.
[30]
The Board starts with a determination that the
Applicant was convicted in the United States of the Illinois offence. The Board
uses the evidence of:
- his guilty plea,
- that a conviction is registered in the
National Crime Information Centre,
- that he has fingerprints matching an FBI
database for convictions; and
- that a certified statement of conviction
from Illinois establishes that he was convicted.
[31]
This is the Board first using method two to
examine the evidence adduced before her to establish the Illinois conviction.
[32]
Then, the Board switched to method one and
extracted the necessary elements of both the Canadian and Illinois provisions,
and found the necessary elements were equivalent. Consequently, the Board
ultimately used method three to find equivalence because she used a combination
of both methods.
[33]
The Board found the equivalent essential elements
between the attempt provisions to be (1) intent; (2) to commit offence; and (3)
acts for the purpose of committing an offence. This is a reasonable extraction
of elements from the provisions. The Board found the equivalent essential
elements of the burglary/break and enter provision to be (1) dwelling house
(same as dwelling place); (2) breaking and/or entering to be the same as enter
without authority; (3) intention to commit offence; (4) theft or felony
equivalent to indictable offence.
[34]
I disagree with the Applicant’s argument that
“break and enter” is not the same as “enter without authority” because it is a
distinction without a difference. The Board recognized that the wording was
different but that the purpose and meaning of the words was the same. As
described in Li, above at paragraph 18, the words must be similar or
involve the same criteria – there is no requirement that the words be identical
in order to find equivalence:
I believe that it would be most consistent
with the purposes of the statute, and not inconsistent with the jurisprudence
of this Court, to conclude that what equivalency of offences requires is essentially
the similarity of definitions of offences. A definition is similar if it
involves similar criteria for establishing that an offence has occurred,
whether those criteria are manifested in "elements" (in the narrow
sense) or "defences" in the two sets of laws. In my view the
definition of an offence involves the elements and defences particular to that
offence, or perhaps to that class of offences.
[35]
The Applicant’s argument outlined in the chart
above attempts to suggest that the Canadian provision is not equivalent to the
Illinois one, but what he has really demonstrated is that the Canadian offence
is broader, therefore, I see that it necessarily includes the acts that would
constitute an offence in Illinois. Further, the Board found and extracted the
essential ingredients of each offence and then considered whether they were
equivalent. I find the Board’s analysis is reasonable. Finally, for the Court
to undertake a discrete analysis of the exact wording of the provisions and do
its own equivalence analysis as the Applicant does in his memoranda would end
up being a correctness review rather than a reasonableness review.
[36]
The Applicant argues that in Li, the
decision of equivalence was set aside because without evidence as to the
circumstances of the United States conviction, there could be no finding of
equivalency. Lei can very easily distinguished because in that case, the
court found the Canadian offence was narrower and as such, the adjudicator
would have to go beyond the words of the statute and the acts would have to be
analyzed. In the case at bar, the reasonableness of the equivalence is what is
assessed at the Federal Court and I determined that the equivalence was
reasonable. As such, the underlying facts do not need to be analyzed as
suggested by the Applicant. The reliance on Ngo, above, does not stand
because in that case, the board did not undertake any equivalency analysis
between the specific wording of the statutes whereas here, the Board did
exactly that.
[37]
Similarly, the Applicant’s reliance on Brannson
is also faulty because the Canadian provision was narrower in that case and so
the actions leading to the charge had to be analysed to determine if they would
constitute a crime in Canada. Because of the difference in scope between the
two provisions, the court found that the board in Bransson was obligated
to investigate if the actions in the foreign jurisdiction would be captured by
the Canadian provision.
[38]
In his Further Memorandum of Argument, the
Applicant strongly argues that the Board was required to look into the facts of
the United States conviction in order to find equivalence. However, I just
repeat that the Board is not required to re-try the Applicant to see if he
would be convicted in Canada. The bar is simply not that high – the Board only
needs to find reasonable grounds to believe that such an act would lead to a
conviction in Canada. Li does not allow for the Board to conduct a
“mini-trial” but that the Board must compare the provisions, not the chance of
conviction in Canada. Brannson also states that the “essential ingredients, or elements constituting the Canadian
offence” must be assessed for equivalence to the elements of the foreign
provision, not necessarily the facts constituting the offence. Brannson
at paragraph 38 states:
[I]n determining whether the offence
committed abroad would be an offence in Canada under a particular Canadian
statutory provision, it would be appropriate to proceed with this in mind:
Whatever the names given the offences or the words used in defining them, one
must determine the essential elements of each and be satisfied that these
essential elements correspond.
[39]
The Applicant’s argument that his actions are
more in line with mischief and that the Crown would have proceeded in such a
way is also an inappropriate consideration. The Board is not required to guess
what the Crown would have done in Canada. The Board’s role is to compare the
provisions to determine if there are reasonable grounds to believe a conviction
would have occurred.
[40]
In light of the above, I find that the Board
reasonably assessed the equivalence between the Canadian and US provision. The Board conducted a thorough analysis of the provisions and analysed their wording
to find them equivalent.
[41]
In regards to rehabilitation, the Applicant is
required to complete a rehabilitation application before the Board can properly
consider if he is rehabilitated. The onus is again on the Applicant to submit
such an application and then ensure that an approved application is before the
Board. This is described by Mr. Justice Shore in Akanmu Alabi v Canada (Public Safety and Emergency Preparedness), 2008 FC 370:
[36] Mr. Akanmu Alabi’s assertion must fail
for a number of reasons. The onus is on Mr. Akanmu Alabi to establish that the
Minister has deemed him to be rehabilitated. This would necessarily involve
adducing evidence before the Immigration Division to establish that fact.
[37] Secondly, the Immigration Division may
only assess the evidence that is put before it. Unless evidence of the
Minister’s positive finding of rehabilitation is adduced, the Immigration
Division cannot assess whether paragraph 36(3)(c) of the IRPA applies. If he
was indeed determined to be rehabilitated by the Minister, it was incumbent on
Mr. Akanmu Alabi to adduce that evidence before the Immigration Division
Member.
[38] Mr. Akanmu Alabi cannot be considered
rehabilitated without adducing evidence that such a finding was made. The
Immigration Division cannot be faulted for expecting the he adduce such
evidence.
[42]
At the hearing I asked the Respondent to provide
the processing times for a rehabilitation application and it was provided as
approximately 12 months.
[43]
No rehabilitation application had been filed at
the time of the hearing. I find it was reasonable for the Board not to consider
whether the Applicant was rehabilitated.
B.
Should CIC be Ordered to Process the 1989 Application
and Grant the Applicant PR Status?
[44]
The Applicant makes this application seeking
declaratory relief against the alleged “unwillingness” of CIC to finalize the
Applicant’s 1989 application for PR status. In the alternative, the Applicant
seeks a mandamus order compelling CIC to grant him PR status or alternatively,
to compel CIC to complete the processing of the 1989 application within a
specific time frame. The Applicant seeks costs on a partial-indemnity basis for
the long delay in processing the application. There was no additional
communication between the Applicant and CIC following the submission of the
1989 application and the 1991 FOSS notes that indicate that it is still in
process.
[45]
The Applicant does not dispute that he could not
be landed at any point after the coming into force of the IRPA because CIC
could not be satisfied that he is inadmissible since his medical, criminal and
security clearance are mostly likely expired. The Applicant instead argues that
he met all the statutory requirements of the former Immigration Act and
its Regulations as of 1990 or 1991, and CIC refused or failed to land
the Applicant between 1989 and 1993 (the year he was convicted in the US).
[46]
The Applicant submits that the criteria for
issuing a writ of mandamus has been met (Apotex Inc v Canada (Attorney General),
[1994] 1 FC 742 at 55; Conille v Canada (Citizenship and Immigration),
[1999] 2 FC 33 at 8). The Criterias are:
- There is a public legal duty to the
applicant to act
- The duty must be owed to the applicant
- 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, eg
unreasonable delay; and
- There is no other adequate remedy.
[47]
Both counsel presented very compelling and
excellent arguments. While it is somewhat of an enigma regarding what really
happened to the 1989 application, the onus is on the Applicant to prove his
status. The evidence before the Board does not support that he was ever given
PR status even though his application was processed through stage one. Making
the determination of what happened more difficult, the Applicant chose not to
provide evidence for some of the gaps in time periods. Further complicating the
situation is that there is a sparse CIC file since the file was destroyed as
per the normal course of business in 2008 and remaining are only the FOSS
notes.
[48]
Upon judicial review of two of his detention
hearings, Mr. Justice Hughes wrote in Moscicki v Canada (Citizenship and
Immigration), 2014 FC 993 at para 6 “…while the
Applicant has been in detention for some eight months the only reason why he
has not yet been removed is his refusal to co-operate with the Polish
authorities. He is the author of his own continued detention.”
[49]
I echo Mr. Justice Hughes and say that the
Applicant is the author of his own misfortune regarding his status in Canada. I have some sympathy for the Applicant as the sponsorship happened when he was a
young person and his young age may account for not following up with CIC.
However, when the Applicant returned to Canada in 2008, he should have
understood that he did not have PR status when he only received a 6 month TRV.
All of the documents from the State of Illinois say he is a citizen of Poland and that is where he was deported to after serving his sentence. So again the fact
he was not a PR in Canada should have been clear to him when he entered the
American legal system in 1992.
[50]
The Applicant argues that he has met these
requirements for a mandamus order: (1) CIC has a public legal duty to process
his permanent residence application and that duty is found in subsection 5(2)
of the former Immigration Act and subsection 11(1) of the IRPA which
imposes a obligation to grant landing to applications who meet the relevant
statutory requirements; (2) once CIC determined the Applicant was a dependent
son under subsection 2(1) of the former Regulations, CIC was obliged to
assess whether landing could be granted; (3) the Applicant submitted a complete
application, supporting documents and processing fee which required a CIC
officer to perform his or her duty and (4) the application has been in process
for almost 25 years which is an unreasonable delay. This is sufficient for
mandamus order. But for the CIC’s delay, the Applicant submits that he would
have been landed as early as 1990 or 1991.
[51]
The Applicant states that the evidence is
conflicting about his status in that CIC has confirmed they have no record of
his landing however Service Canada indicates he is a landed immigrant and there
is no decision confirming refusal of his application. The Applicant points
particularly to the Service Canada evidence which according to Toussaint v Canada (Attorney General), 2011 FCA 213 at 40, Service Canada is prohibited from
approving medical coverage to foreign nationals. The Applicant submits that in
absence of contrary evidence, it should be deemed that Service Canada was
diligent when verifying the Applicant’s status prior to approving his renewal
application in March 2013.
[52]
The Federal Court has jurisdiction to grant a
writ of mandamus pursuant to the Federal Courts Act, RSC 1985, c F-7,
section 18.1(3). That order may be made if the test from Apotex, above
is satisfied. Madam Justice Gagné in Magalong v Canada (Citizenship and
Immigration), 2014 FC 966, described Apotex as:
[21] The writ of mandamus is a discretionary
equitable remedy. It “lies to compel the performance of a public legal duty
which a public authority refuses or neglects to perform although duly called
upon to do so” (Dragan v Canada (Minister of Citizenship and Immigration),
2003 FCT 211, [2003] 4 FC 189 at para 38).
[22] The parties agree that the following
criteria must be satisfied, as set forth in Apotex Inc v Canada (Attorney
General), 1993 CanLII 3004 (FCA), [1994] 1 FC 742, aff’d [1994] 3 S.C.R. 1100
at para 45, before the Court can issue a writ of mandamus:
1. there must be a public duty to act under
the circumstances;
2. the duty must be owed to the applicant;
3.there must be a clear right to 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 must have some practical
effect;
6. in the exercise of its discretion, the
Court must find no equitable bar to the relief sought; and,
7. on a balance of convenience, an order of
mandamus should issue.
[53]
In Singh v Canada (Citizenship and
Immigration), 2010 FC 757 (“Singh”), following the Apotex analysis,
Mr. Justice de Montigny found that CIC had a public legal duty to process a permanent
residence application in an analogous case:
[50] …It is clear that CIC has a public
legal duty to process the Applicant’s permanent residence application. Section
5(2) of the former Immigration Act imposed on CIC a clear obligation to
grant landing to an applicant for permanent residence who meets the relevant
statutory requirements, and the same is true by virtue of section 11(1) of
IRPA: see, for example, Dragan, above, at para. 40; Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, [2006] FCJ No. 1458 at
para. 41.
[54]
In Singh, above, the facts are similar as
are the statutory provisions: the applicant in that case advanced to stage two
processing in order to determine whether he met the statutory requirements for
landing but his application was not approved because CIC determined that a
photocopy of his passport was not sufficient to meet the requirements. Criminal
charges were laid in the intervening years and the applicant never obtained PR
status. Mr. Justice de Montigny found that once the applicant submitted a
completed application with required supporting documents and paid the fee, he
had a right to a performance of the duty described above. In the ten years
prior to the charges being laid, the Court found that the applicant was
entitled to PR status and consequently issued a mandamus order.
[55]
While on its face, Singh is analogous, the
crucial documentary evidence of the 1989 file is destroyed and the facts are
far from identical as the Applicant argues. The Applicant here has complained
of a 25 year delay and under the same provisions of the Act in force in 1993 as
in Singh, also is owed a duty by the CIC to complete the application
since the FOSS notes indicate that the application was being processed.
Unfortunately, the Applicant cannot establish that he has satisfied all the
conditions precedent that give rise to that duty as required from Apotex.
[56]
The Respondent rightly argues that there is no
evidence to prove that the Applicant met the requirements of permanent
residence or that the delay is not his own fault.
[57]
Unlike Singh, the evidence that may
establish that the Applicant met the statutory requirements is ambiguous.
Further, in Singh, the applicant and his counsel repeatedly contacted
CIC for updates and there was an actual file date and file entry indicating
that he satisfied all the statutory requirements.
[58]
A further complication arises however because it
is the Respondent who is responsible for the destruction of the file that would
demonstrate whether they failed to act. Had the file been intact and complete,
considering an order of mandamus would be appropriate however without that
evidence it is impossible to process the 1989 PR application.
[59]
In Canada (Minister of Citizenship and
Immigration) v Obodzinsky, [2000] FCJ No 1675, the issue of destruction of
immigration files was raised. Mr. Justice Marc Nadon found that the routine
destruction of immigration files is reasonable and does not constitute
negligence on the part of the government. Further, the destruction of the file
impacts both parties because the existence of the file is determinative for
both parties.
[60]
The Respondent has the ability to fill in some of
the gaps in the time period that the file does not cover. The CIC file shows he
met the stage one requirements and was given a work permit (October 18, 1989 to
February 5, 1992) while being sponsored by his father when he arrived as a 17
year old on October 18, 1989. He provided a SIN and health card that indicates
he was a PR, but I do not find that determinative as he was a child and being
sponsored by his father and I have no evidence that these were not given on the
basis of being a sponsored child. I have no evidence showing that he was a PR
and had completed stage two, The FOSS notes shows that on February 5, 1991, the
application was in process and then nothing else. So there is a three year
period from October 1989 until the conviction on January 22, 1993 where there
is no evidence.
[61]
I do not have evidence of exactly when he served
his sentence or when he was deported from the United States. I have evidence he
was in Chicago on 08/12/93 when he was released. But, there is no evidence of
his whereabouts until he arrived back in Canada on August 9, 2008 with a Polish
passport and was issued a six month temporary resident visa in order to be
allowed entry into Canada. This passport was not produced as evidence.
[62]
I have no evidence whether he worked or where he
worked during the missing time periods or for that matter where he resided in
the world. The Applicant has chosen not to provide evidence to assist. While
the Applicant stated in his affidavit and in written argument that he has “over twenty years of residence in Canada”, there is
no evidence to support that such as tax returns or his proof of where he
resided. We do know he applied for welfare on two occasions from the FOSS
notes.
[63]
I understand the Applicant’s arguments and do
believe that when he was 17 years old that he knew the process was initiated
and had the documentation to continue on with his life. He probably thought he
had permanent resident status but I see no evidence that he progressed beyond
stage one. In this case, there is no “clear right” to granting PR status and it
is far from obvious that the Applicant satisfied all the conditions precedent
giving rise to the duty to grant PR status.
[64]
I am not prepared to grant any of the relief
sought by the Applicant which was:
- Declaratory relief that in 1990 CIC failed
to perform legal duties regarding the Applicant’s PR application;
- Declare is the Applicant’s status is in
principle for a PR;
- Declare both the deportation and
exclusion orders (removal orders) stayed pursuant to s. 233 of the Immigration
and Refugee Protection Regulations because of public policy until CIC
grants PR status;
- Issue a writ of mandamus to compel CIC to
process the PR application within 90 days under stage two since stage one (approval
in principle) is already complete.
[65]
Based on what is before the Court, I do not see
there is evidence to compel CIC to grant Permanent Residence.
[66]
The Applications are dismissed and no special
costs are ordered as requested. No question is certified.
THIS
COURT’S JUDGMENT is that:
1.
The applications are dismissed;
2.
No costs are ordered;
3.
No question is certified.
"Glennys L. McVeigh"
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