Docket: IMM-7786-14
Citation:
2015 FC 1248
Ottawa, Ontario, November 4, 2015
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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PIRABAKARAN
KANTHASAMYIYAR
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for a writ of mandamus,
resulting from the Minister of Citizenship and Immigration’s [CIC] failure to
render a decision on the Applicant’s application for permanent residence as a
protected person, which has been pending since February 2006. While the
ultimate responsibility for the decision rests with CIC, the Applicant argues
that the Minister of Public Safety and Emergency Preparedness [MPSEP] is
necessarily involved, as a result of his statutory responsibility to conduct an
examination of the Applicant’s admissibility under section 34 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Applicant asks the Court
to compel both Respondents to finalize the application within the following
thirty days. The Applicant is also seeking costs on his application.
[2]
In the interim, the Respondents made a motion
pursuant to section 87 of IRPA for a non-disclosure order to protect information
presently redacted in the Certified Tribunal Record [CTR], on national security
grounds. This motion was granted by the Court on September 16, 2015 with
respect to pages 506-512 of the CTR (Canada Border Services Agency’s [CBSA]
2013 inadmissibility assessment and Canadian Security and Intelligence
Service’s [CSIS] March 23, 2010 brief). The Respondents have advised the Applicant
and the Court that they did not intend to rely on the redacted information in
the course of the present application, and they did not.
[3]
On the merits, the Respondents argue that the
present application should be dismissed because compelling CIC to issue a
decision within a strict time frame would have the effect of aborting or
abbreviating their security investigation. In the alternative, they request
that the hearing should be adjourned to January 2016, at which time CIC could
provide an update regarding whether it has made an admissibility determination
and confirm the remaining steps, if any, to finalize the Applicant’s application
for permanent residence.
II.
Facts
[4]
The Applicant Pirabakaran Kanthasamyiyar is a
Hindu priest from Sri Lanka. He arrived in Canada on January 13, 2005 and made
a refugee claim upon arrival, based on alleged persecution by the Liberation
Tigers of Tamil Eelam [LTTE], the Eelam People’s Democratic Party and the Sri
Lankan security forces. In his Personal Information Form [PIF] narrative, he
explained that the LTTE had forced him to dig bunkers and fill sandbags, and to
teach computer courses to youths in the LTTE offices. He also alleges being
beaten by the Sri Lankan security forces (the army and/or the police) on
various occasions due to his suspected membership in the LTTE. In 2004, the
Applicant became convinced that the LTTE wanted to force him to become a
militant, which is why he escaped to Canada.
[5]
The Refugee Protection Division Board determined
that the Applicant was a Convention refugee and allowed his claim on February
9, 2006. That same month, the Applicant applied to CIC for permanent residence
as a protected person, pursuant to subsection 21(2) of IRPA. No decision has
yet been rendered on that application, hence the application for a writ of mandamus.
[6]
The Applicant has been a priest at the Canada
Kanthaswamy Temple [CKT] in Scarborough, Ontario, since January 2005, first as
a volunteer priest and subsequently as an employee.
[7]
On June 13, 2007, the Applicant married his
wife, a citizen of Sri Lanka, at the Sri Lanka High Commission in Singapore. In
his affidavit, he states that the principal purpose of the trip was the
marriage, but that he also travelled to Singapore, Malaysia, Germany and
Switzerland. He advised CIC of his marriage in October 2007 and in March 2009,
he requested that his wife be added to his permanent residence application.
[8]
On April 8, 2008, CSIS interviewed the Applicant
about the activities he was forced to do for the LTTE back in Sri Lanka. The
Applicant acknowledged the activities from his PIF narrative, but denied ever
being a member of the LTTE or World Tamil Movement [WTM]. He also denied
knowing of the LTTE / WTM in Toronto or of any fundraising efforts on their
behalf by the CKT.
[9]
On May 13, 2009, a CIC officer requested an
update from CSIS, noting that the interview occurred on April 8, 2008. CSIS
replied on May 19, 2009 that the case was under review. On June 8, 2009,
another CIC officer asked CSIS if the Applicant had been “NRT’d” [no reportable trace], noting that the CSIS
clearance had been outstanding since 2006. On June 12, 2009, CSIS responded
that the case was still under review and that “it has
been worked on recently. It has not been forgotten”.
[10]
On March 23, 2010, CSIS issued its case brief to
the CBSA regarding the Applicant’s possible inadmissibility pursuant to
paragraph 34(1)(f) of IRPA. It was apparently temporarily lost as CBSA
only received it in February 2011. The Applicant obtained a redacted copy of
this brief.
[11]
On May 24, 2010, a “poison
pen” letter was received by the Canadian High Commission in Colombo and
was forwarded to CSIS for assessment the following day. The letter claimed that
the Applicant resided in Germany prior to entering Canada, that he still has
links with the LTTE’s former members, and that he orders vandalism activities
to be carried out by LTTE members. It also claimed that his marriage was a sham
and that he would receive $30,000-$40,000 for bringing his wife to Canada. On
June 1, 2010, CSIS advised that the letter had been passed on and results would
follow when available. A follow-up poison pen letter was received on July 7,
2010, claiming that after the Applicant got married, he travelled to several
countries to meet former heads and leaders of the LTTE. This letter was also
forwarded to CSIS.
[12]
On November 15, 2010, a CIC officer made a note
to file that CIC would:
•
await CSIS to continue
to process PP [poison pen] letter info before disclosing to client
•
once decision by CSIS
made, then depending on veracity of PP letters, will proceed accordingly
•
for time being IO/DL
has advised to inform counsel that bkgrd [background] checks are still under
review
•
an email has been sent
to CSIS HQ to inquire about a status update.
[13]
The Applicant only found out about the existence
of the poison pen letters in early 2014 through access to information requests,
and did not obtain production of them until he received the CTR in June 2015.
[14]
In response to CIC’s November 15, 2010 request
for an update, CSIS advised CIC to contact CBSA. On November 17, 2010, CBSA
advised that it did not find any information related to the Applicant in its
databank. CIC requested further updates from CBSA on February 14, 2011 and on
September 8, 2011. On September 21, 2011, CBSA advised that the assessment of
the case was not yet finalized and that since the brief would soon expire, it
requested updated IMM forms from CIC. CIC sent these forms to CBSA on October
5, 2011.
[15]
On October 6, 2011, CBSA requested updated
security advice from CSIS regarding the Applicant. CSIS completed an updated
security briefing on December 13, 2011 but CBSA only received it sometime
before April 16, 2012. The brief is not contained in the CTR as it was not
transmitted from CBSA to CIC. During cross-examination, CIC officer Clare
Palmer suggested that this may be because “[s]ometimes
CBSA doesn’t forward the brief if it contains no new information”. The Applicant obtained a redacted copy of this
briefing.
[16]
On March 1, 2013, CIC requested an update from
CBSA. The same day, CBSA advised that the file was still under review, and that
it had been referred for further analysis. On March 18, 2013, CBSA advised CIC
that after an initial review of the file, CBSA required additional information
before it could conclude its assessment. On May 15, 2013, CIC sent a memorandum
to CBSA, requesting a brief update and attaching the additional information.
[17]
On July 17, 2013, the CBSA completed its own
inadmissibility assessment pursuant to paragraph 34(1)(f) of the IRPA,
concluding that there were reasonable grounds to believe that the Applicant is
inadmissible due to his membership in the LTTE. The assessment states that while
the Applicant never admitted he was a member of the LTTE, he is a priest at
CKT, which is under forcible control of the WTM, a leading organization for the
LTTE.
[18]
The Applicant was convoked for an interview with
CBSA on January 28, 2014, subsequently rescheduled for April 10, 2014. During
the interview, the CBSA officer questioned the Applicant about the basis for
his refugee claim, his associates in Canada, the CKT and whether he is a member
of the LTTE. The Applicant admitted having heard rumours that the CKT was
previously thought to have engaged in fundraising for the WTM and the LTTE, but
that any such engagement was before he began working there. He stated that he
did not believe it had continued during his time with the CKT.
[19]
On July 9, 2014, the Applicant requested an
update, and on July 12, 2014, the CBSA officer indicated that the investigation
was ongoing. The Applicant again followed up on September 16, 2014, but no
reply was received. On September 25, 2014, the Applicant wrote to both CBSA and
CIC advising that unless his case was resolved, he would seek legal action.
[20]
The CBSA replied on September 29, 2014, stating
that the investigation was ongoing. The CIC replied on October 7, 2014,
indicating that the Applicant’s file had been transferred to the Vancouver CIC
office. Neither agency provided a timeline. The Applicant filed the present
application on November 18, 2014.
[21]
On February 3, 2015, CBSA completed a report
pursuant to subsection 44(1) of IRPA alleging that the Applicant is a member of
the LTTE, contrary to paragraph 34(1)(f) of IRPA. The file was referred
for an admissibility hearing on March 10, 2015. The admissibility hearing had
not yet occurred nor has it been scheduled.
[22]
In her affidavit dated January 13, 2015, CIC
officer Clare Palmer states that she expects to be able “to begin [her] review of the Applicant’s file next
week and, based on [her] past experience, expect to be able to make [her]
determination with respect to the Applicant’s inadmissibility in 3 to 6 months” and if not found inadmissible, another 6 months
would be necessary for other clearances.
[23]
In her affidavit dated June 24, 2015, she states
that she “would anticipate receiving the completed
assessment from CBSA by mid-August” and that, “at
this point in time, [she] estimate[s] that [she] would be able to make [her
determination] with respect to the Applicant’s admissibility within 6 months.”
[24]
At the beginning of the hearing before me, the
Respondents made an oral motion for permission to file two new affidavits in
support of their position: a further affidavit of Clare Palmer dated October
15, 2015 and an affidavit from CBSA officer Claudio Pellicore dated October 16,
2015. I granted that motion.
[25]
In this new affidavit, Ms. Palmer first states
that she has received an updated inadmissibility assessment from CBSA and that “[i]t is non-favourable and contains similar
information to the previous assessments.” As the
updated report is not attached, I agree with the Applicant that I should infer
that it contains no new information. She also states that she did not receive
an update from CSIS and that in spite of the fact that CSIS’ report was to expire
during the month of October; no update was required as the previous report was
still valid when the discussion occurred. Finally, she states that on July 14,
2015, she requested CBSA to run an INTERPOL fingerprint checks as it was not
done when the Applicant arrived in 2005, and that on August 11, 2015, she asked
the Applicant’s permission to disclose any record he may have in Germany.
Apparently, this verification was not performed when they received the poison
pen letters in 2010, one of which indicated that the Applicant resided in
Germany prior to coming to Canada. Due to the Applicant being outside of the
country until October 8, 2015, the request was only put to the German
authorities on October 15, 2015. Ms. Palmer expects to receive a response in
late October or early November and be able to interview the Applicant if
necessary in late November. She therefore expects to be able to make a
determination with respect to the Applicant’s admissibility in December 2015.
III.
Issues
[26]
This application for judicial review raises the
following issues:
1. Is the Applicant entitled to an order from this Court enjoining the
Respondents to render a final decision concerning his application for permanent
residence in Canada?
2.
Should the Applicant be awarded costs?
IV.
Analysis
A.
The Applicant entitlement to an order from
this Court enjoining the Respondents to render a final decision concerning his
application for permanent residence in Canada
(1)
Position of the parties
(a)
Applicant
[27]
As a preliminary matter, the Applicant argues
that both CIC and the MPSEP are responsible for finalizing the application, and
for the delays that have occurred in its processing. This responsibility is
anchored in sections 4 and 21 of IRPA, as well as in the Order Setting Out
the Respective Responsibilities of the Minister of Citizenship and Immigration
and the Minister of Public Safety and Emergency Preparedness Under the Act,
SI/2005-120. Since both Ministers are responsible, they must both be bound by
any order of this Court.
[28]
The Applicant then argues that this case meets
the eight criteria for an application seeking mandamus, as per Apotex
v Canada (Attorney General), [1994] 1 FC 742 (FCA) at para 45, aff’d [1994]
3 SCR 1100 [Apotex]. This test is applicable in immigration matters (Dragan
v Canada (Minister of Citizenship and Immigration), [2003] 4 FC 189 at para
39).
[29]
In their written submissions, the Respondents
only argue that the third and eighth Apotex criteria are not met. At the
hearing however, they added that the seventh Apotex criterion is not met either
and that the Court should find that the additional information contained in the
October 15, 2015 affidavit of CIC officer Clare Palmer amounts to an equitable
bar to the relief sought. As the Respondents did not clearly articulate that
last argument, the present reasons will only address the third and eighth Apotex
criteria.
[30]
With respect to the third Apotex
criterion, the Applicant argues that there is a clear right to the performance
of the Respondents’ duty, because he has satisfied all the conditions precedent
for the processing of his application for permanent residence, he has made many
prior demands for a decision, a reasonable time was allotted to the Respondents
to comply and the delay has been unreasonable. The Applicant bases his argument
that the delay is unreasonable on the three criteria outlined in Conille v
Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1553 (FC)
at para 23 [Conille]. These are: (1) the delay has been longer than the
nature of the process requires, prima facie; (2) neither the Applicant
nor his counsel is responsible for the delay; and (3) the authority responsible
for the delay has not provided satisfactory justification (see also Douze v
Canada (Citizenship and Immigration), 2010 FC 1337 at para 28 [Douze]).
[31]
Nearly ten years have elapsed since the
Applicant submitted his application. According to the Applicant, this delay has
largely been occasioned by the MPSEP, which has offered no justification for
the delay. The Applicant argues that all of the information on which the CBSA
has relied for its 2013 inadmissibility assessment dates from 2008 or earlier,
which begs the question as to why a decision has still not been rendered. CIC,
for its part, failed to act after receiving the 2013 assessment, and only began
to act after the present mandamus application was filed. Its failure to
act promptly led to the need to request a new security screening from CBSA,
which engendered further delays. Finally, there have been communication
failures between the CBSA and CSIS, which further contributed to the delay.
[32]
With respect to the eighth Apotex
criterion, the Applicant argues that the balance of convenience is in his favour
and that he has been prejudiced by the delay. Meanwhile, the Respondents have
had ample opportunity to determine the permanent residence application; they
would not be prejudiced by a mandamus order.
(b)
Respondents
[33]
The Respondents agree that the mandamus
test from Apotex is applicable here, but argue that the third and eighth
criteria have not been met. Thus, a mandamus order is not warranted.
[34]
With respect to the third criterion of the Apotex
test, the Respondents argue that the delay is not unreasonable. They contend
that their obligation to promote international justice and security, provided
for in paragraphs 3(1)(h) and (i) of IRPA, along with their duty
to determine the admissibility of the Applicant, found in subsection 21(2) of
IRPA, justify this delay. The Respondents cite Bhatia v Canada (Minister of
Citizenship and Immigration), 2005 FC 1244 at para 15 [Bhatia], and
remind us that subsection 21(2) of IRPA does not provide time limits for an
officer’s determination of admissibility.
[35]
The Respondents emphasize the importance of not
aborting security investigations undertaken in the context of permanent
residence applications (Seyoboka v Canada (Minister of Citizenship and
Immigration), 2005 FC 1290 at paras 8-10 [Seyoboka]). In the present
case, there are legitimate concerns about the Applicant’s involvement with the
LTTE and the poison pen letters made specific, concrete allegations that
required further investigation. The Respondents also argue that the Applicant’s
story through which he obtained refugee status may have contained significant
misrepresentations, which may support an application to vacate that status.
This would remove the foundation for his permanent residence application.
[36]
The Respondents insist that the Applicant’s file
is being monitored on a regular basis, and the screening regarding security and
inadmissibility provides a satisfactory justification for the delay (Conille,
above at para 23). They also emphasize that CIC officer Clare Palmer, to whom
the Applicant’s file was transferred in December 2014, has been diligent and
expects to make a determination regarding the Applicant’s admissibility within
three months.
[37]
As for the eighth criterion of the Apotex
test, the Respondents argue that the balance of convenience favours them rather
than the Applicant. The Respondents must investigate the security concerns
related to the Applicant’s possible association with the LTTE before a decision
on his permanent residence application can be rendered. In the process, the
Applicant’s file is being regularly monitored. These factors militate against
issuing a mandamus order, or, in the alternative, adjourning the hearing
until January 2016, when the CIC could provide an update regarding whether
officer Clare Palmer has made an admissibility determination, and what steps,
if any, remain to be taken on the application. The Respondents cite Dhahbi v
Canada (Minister of Citizenship and Immigration), 2004 FC 1702 at paras
40-42 [Dhahbi] as a precedent for the requested adjournment.
(2)
Apotex criterion #3: Is there a clear right to
performance of the duty?
[38]
With respect to the third criterion, I agree
with the Applicant that he has fulfilled the conditions precedent, by filing
his application, paying the requisite fees, and cooperating with the CIC and
MPSEP throughout the process (Bhatia, above at para 17). The Respondents
offer no detail as to why the Applicant would not have fulfilled the conditions
precedent.
[39]
The determination as to whether the delay was
unreasonable on the actions of both CIC and the MPSEP (CBSA and CSIS) depends
on the criteria set out in Conille, above at para 23.
a)
Conille criterion (1): Is the delay
longer than the nature of the process requires, prima facie?
[40]
The question then becomes, is this nearly
ten-year delay prima facie unreasonable? In Seyoboka, above at
para 8, Justice Pinard held:
Even though at first glance nine
years is a long time for someone who is waiting to be given permanent residence
status, mandamus applications must be assessed in accordance with the
particular facts of the case; the case law is used only to outline the
parameters (Mohamed v. Canada (Minister of Citizenship & Immigration),
[2000] F.C.J. No. 1677 (Fed. T.D.), at paragraph 15).
[41]
This was emphasized by the Court in Bhatia,
above at para 15, in reviewing subsection 21(2) of IRPA: “[t]he requirements of the legislation, as set out,
are not subject to any temporal or pragmatic parameters. No time limits are
given with respect to the underlined phrase above. What is reasonable and what
is unreasonable varies as each instance is a case unto itself” (see also Abdolkhaleghi v Canada (Minister of
Citizenship and Immigration), 2005 FC 729 at para 18 [Abdolkhaleghi]).
[42]
From my review of the facts, I conclude that
this delay is prima facie unreasonable. At first glance, the following
brief chronology illustrates that steps were taken regularly: CSIS interviewed
the Applicant in 2008, “worked on” the file in
2009 and issued its case brief to CBSA in March 2010 - though CBSA did not
receive it until February 2011. The poison pen letters, which added a new angle
to the investigations, were received in May and July 2010. CSIS completed an
updated security briefing in December 2011 - though CBSA did not receive it
until April 2012. CBSA then requested additional information from CIC in March
2013, which CIC sent in May or September of 2013. CBSA issued its IRPA
subsection 44(1) report in July 2013, concluding the Applicant was
inadmissible. CBSA interviewed the Applicant in April 2014 and in February 2015,
it completed another IRPA subsection 44(1) report similarly concluding that the
Applicant is inadmissible. CBSA and CSIS sent their completed security checks
to CIC on or around July 6, 2015. The admissibility hearing had yet to occur or
be scheduled as of the date of the hearing. CIC officer Clare Palmer plans on
making her own inadmissibility determination by December 2015.
[43]
However, before the Applicant filed the present
application in November 2014, the only thing CIC did besides answering a CBSA
request, was to wait on the security reports from both CBSA and CSIS, in order
to eventually discharge its own duty. Throughout all these years, it is true
that CIC regularly requested updates from both CBSA and CSIS, but it is also
true that it satisfied itself with vague answers as to the status of the
investigation without any discussion as to the time frame for its completion. CIC
had to request an update of the CBSA report as it had expired and will probably
have to request an update of the CSIS brief which has just expired in October
2015.
[44]
Once the file was finally transferred to CIC
officer Clare Palmer, she had to conduct her own security investigation as
neither security agency seemed to have performed some of the very basic
verifications. First, she had to run a fingerprint check as none was done when
the Applicant arrived in Canada in 2005. It is true that officer Palmer has
indicated it may not have been policy to do so back then but she did not say
when it became policy. Second, she had to ask the Applicant’s permission to
send his personal information to the German authorities in order to investigate
the allegation that the Applicant resided in Germany prior to coming to Canada,
which was contained in the second poison pen letter received in July 2010. I
agree with the Respondents that the fact that both poison pen letters were sent
anonymously did not facilitate the investigation. However, it should not have
taken five years to make that very basic verification with the German
authorities, just as it should not have taken ten years to run a fingerprint
check.
[45]
This begs the question as to the nature and
extent of the investigation that was performed by CSIS and CBSA between April
2006 and July 2015 – aside from the two interviews conducted with the Applicant
in 2008 and 2014. The 2010 CSIS case brief and the 2013 CBSA report do not
provide many details as they mostly contain generic information on the LTTE and
WTM and these organisations’ alleged control over the temple where the Applicant
is employed as a priest.
[46]
In light of the specific facts of this case, I
am unable to find that these delays are prima facie reasonable, nor that
a period of almost ten years is normally required by the nature of the permanent
residence application process.
(a)
Conille criterion (2): Is the Applicant or his
counsel responsible for the delay?
[47]
The second Conille criterion is easily
met: neither the Applicant nor his counsel is responsible for the delay. The
Applicant has cooperated with the Respondents throughout this whole process.
(b)
Conille criterion (3): Has the authority
responsible for the delay provided satisfactory justification?
[48]
Similarly to my analysis of the first Conille
criterion, the determination of the third Conille criterion – whether
the Respondents have provided satisfactory justification for the delays – is largely
incumbent on a factual analysis.
[49]
As is clear from the facts and the brief
chronology above, security checks were ongoing almost throughout the whole
period under review (until approximately July 6, 2015). In Abdolkhaleghi,
above at paragraph 26, Justice Tremblay-Lamer cautioned that a blanket
statement that security checks are pending does not in itself constitute an
adequate explanation, and that “[w]hat will constitute an adequate explanation
will of course depend on the relative complexity of the security considerations
in each case”. While in that case she did not find the delay to be adequately
explained, she acknowledged that other cases have held that ongoing security
checks are justified.
[50]
In the case at bar, the Respondents offer no
explanation for the delay, besides reiterating that the investigation was
ongoing and that issuing an order of mandamus would have the effect of
aborting an important security investigation. However, and as indicated above,
we remain in the dark as to the nature and extent of the investigation that was
performed by CSIS and CBSA between 2006 and 2015. The Respondents have not
provided that information in response to the Applicant’s application and the
CTR does not offer any further insights.
[51]
Again, CIC officer Clare Palmer had to commence
a very basic security check within the last few months as it had not been
performed before.
[52]
Therefore, I am of the view that Conille
criterion (3) is also met.
(c)
Conclusion on Apotex criterion #3
[53]
Given that I have found that the delay was prima
facie unreasonable, and that it was not justified by the Respondents, the
Applicant meets Conille factors (1) and (3). Thus, the third criterion
of the Apotex test is met: there is a clear right to performance of the
duty. This would mean that a mandamus order could issue; however, I will
continue on to analyze the eighth Apotex criterion.
(3)
Apotex criterion #8: Whom does the balance of
convenience favour?
[54]
None of the cases cited above, except Dhahbi,
engages in an analysis of the balance of convenience; those cases were decided
on the third Apotex criterion. Dhahbi involved an application for
a writ of mandamus to compel a CIC officer to make a decision on a
permanent residence application. The file involved security concerns and CSIS
had still not provided its security checks to CIC. In his balancing analysis,
Justice Martineau stated that to dismiss the application for judicial review
would mean that the Applicant would have to file another such application “if the decision awaited was not made within a
reasonable time” (at para 40) and that there was
no guarantee that leave would be granted. That constituted a hardship. However,
he acknowledged that forcing the CIC officer to render her decision in a short
amount of time might place her in a difficult position because she was still
waiting for security checks (at para 41). He also noted that the Respondent’s
evidence was incomplete. Rather than making an order allowing or dismissing the
application for a writ of mandamus, Justice Martineau made an
interlocutory order summoning the parties to a subsequent hearing one and a
half years later, so that further evidence could be adduced by the Respondent
and additional submissions could be made (at para 42).
[55]
The facts of this case are different than those
in Dhahbi. In the present case, the security checks are complete and the
timelines for a decision by the CIC officer are clearer: an admissibility
determination will likely be made by December 2015, and the permanent residence
application will be processed thereafter; the average processing for that
second stage is eight months, according to officer Palmer’s October 15, 2015
affidavit.
[56]
Thus, I believe that the balance of convenience
favours the Respondents, who are near completion of their assessment of the
Applicant’s file.
[57]
However, since the Applicant had to bring this application
for judicial review in order to compel CIC to accelerate its treatment of the
file, I will issue an order of mandamus and grant CIC more time to issue
its decision on the Applicant’s application for permanent residence than is suggested
by the Applicant. I will grant CIC until March 31th, 2016 to complete its
assessment and issue its decision.
B.
Should the Applicant be awarded costs?
(1)
Position of the parties
(a)
Applicant
[58]
The Applicant argues that special reasons
justify costs being awarded, as per Rule 22 of the Federal Courts
Citizenship, Immigration and Refugee Protection Rules, SOR/93-22. The
Applicant cites many cases in which the Court has held that a long unjustified
delay in rendering a decision on an immigration application constitutes special
reasons (for example Ndungu v Canada (Citizenship and Immigration), 2011
FCA 208 at para 7(6)(iv) [Ndungu]; and Bakhsh v Canada (Minister of Citizenship
and Immigration), 2004 FC 1060 at para 14). At the hearing, the Applicant
contended that the cases cited by the Respondents requiring “abusive” conduct
or “bad faith” were not consistent with Ndungu,
and that consequently, the unreasonable delay here is sufficient for an award
of costs.
[59]
The Applicant also argues that the Respondents’
failure to address the application in a timely manner is contrary to article 34
of the Convention Relating to the Status of Refugees, 189 UNTS 2545, and
the family reunification objectives in paragraphs 3(1)(d) and 3(2)(f)
of IRPA. The Applicant proposes a lump sum costs award of $5,000 or that costs
be assessed at the upper end of the range in Column IV of Tariff B of the Federal
Courts Rules, SOR/98-106.
(b)
Respondents
[60]
The Respondents argue that there are no special
reasons warranting costs in this case. There has been no evidence of conduct
that is “unfair, oppressive, improper or
actuated by bad faith” on the part of the
Respondents (Uppal v Canada (Minister of Citizenship and Immigration),
2005 FC 1133 at para 8).
[61]
Although I found that the delay was both
unreasonable and unexplained, I do not find that an award of costs is
warranted. I cannot agree with the Applicant’s assertion that the cases cited
by the Respondents are inconsistent with Ndungu, and thus I find that those
cases are relevant here. I do not believe that this is a case where the
Respondents have demonstrated conduct that is “unfair,
oppressive, improper or actuated by bad faith”.
In fact, no evidence of unfair conduct or bad faith on the part of the Respondents
was adduced before me.
V.
Conclusion
[62]
For all of these reasons, the Court will issue,
without costs, an order of mandamus. However, as only CIC can be
compelled to the performance of the duty, the order will be limited to the
latter. CIC will be compelled to issue its decision on the Applicant’s
application for permanent residence on or before March 31st, 2016.
No costs will be granted.
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