Docket:
IMM-11479-12
Citation: 2013 FC 1185
Montréal, Quebec, November 26, 2013
PRESENT: The Honourable Mr. Justice Boivin
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BETWEEN:
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ZEINA ALI JABER
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the
Act), for judicial review of the respondent’s failure to render a decision with
respect to the applicant’s application for Canadian permanent residence. The
applicant requests an order in the nature of mandamus requiring the
respondent to render a final decision on the applicant’s application for
permanent residence.
Factual Background
[2]
Zeina Ali Jaber (the applicant) is a citizen of Lebanon. She landed in Canada in 2003 and claimed refugee status the same day.
[3]
On February 15, 2005, the applicant was
recognized as a Convention refugee and filed an application for permanent
residence in the Protected persons class on February 26, 2005.
[4]
On May 26, 2005, Citizenship and Immigration
Canada (the respondent) began processing the applicant’s application for
permanent residence.
[5]
On June 26, 2005, a security inquiry was
launched to investigate the applicant’s background.
[6]
On July 6, 2010, the respondent informed the
applicant that before a decision could be rendered in connection with her
application for permanent residence, an update of her file was required. The
respondent requested that the applicant provide various personal certificates
and financial documents within thirty (30) days.
[7]
On August 4, 2010, the applicant provided the
respondent with the requested documents.
[8]
Between September 7, 2006 and March 5, 2010, the
respondent made various investigations regarding a possible intervention in
Jaafar Mohamad Sbeiti’s refugee protection claim. The applicant divorced Mr.
Sbeiti on March 19, 2002, while they were living in the United States. On February 28, 2007, the two remarried in Canada. On April 16, 2010, Mr. Sbeiti
obtained refugee status in Canada. On May 10, 2010, the respondent began
processing Mr. Sbeiti’s application for permanent residence.
[9]
On December 6, 2010, security inquiry was
triggered in order to investigate Mr. Sbeiti’s background.
[10]
The respondent decided that given the ties
between the applicant and Mr. Sbeiti and the many overlaps in their
declarations, it would wait for the result of Mr. Sbeiti’s security inquiry
before rendering a final decision pertaining to the applicant’s application for
permanent residence.
[11]
On January 19, 2011, the applicant sent a letter
to the respondent asking whether the requested documents were received, if any
further information was required and when the respondent believed her application
would be finalized.
[12]
On February 2, 2011, the respondent replied and
confirmed that the requested documents had been received, that no further
information was required and that it was unable to confirm when the application
would be finalized.
[13]
On September 19, 2012, the applicant sent a
further letter to the respondent requesting an update on the processing of her
application.
[14]
On September 24, 2012, the respondent replied
that the application was “currently in queue to be reviewed” and that the processing
delay could not be confirmed “as it varies according to the number of
applications in process, the complexity of the file and the availability of the
results of all statutory requirements for [the applicant] and her family”.
[15]
On November 9, 2012, the applicant applied for
leave and for judicial review for the respondent’s non-action “in respect of
its failure to process in a timely manner the applicant’s application for
permanent residence in Canada” seeking, amongst other things, an “Order for a
Writ of Mandamus”.
[16]
On January 17, 2013, the Minister of Public
Safety and Emergency Preparedness (the MPSEP) filed an application under
paragraphs 108(1)(a) and 108(1)(e) of the Act for the purpose of
a cessation of the refugee status in Canada of the applicant and of Mr. Sbeiti.
This application was based on the alleged contradictions in the files of the
applicant and of Mr. Sbeiti, as well as security concerns.
Issue
[17]
The only issue raised in this application is
whether the applicant is entitled to an order of mandamus with respect
to its application for permanent residence.
[18]
The applicant alleges that the respondent failed
in its duty to enforce the provisions of the Act in a prompt manner. She
submits that the eight (8) year processing delay of her application for
permanent residence is unreasonable (Conille v Canada (Minister of
Citizenship and Immigration) (TD), [1999] 2 FC 33, 159 FTR 215 [Conille])
[19]
The applicant emphasizes that she provided the
respondent with the requested additional information in a timely manner, that
she is not responsible for the delay at issue and that no satisfactory
explanation has been provided by the respondent. On this basis, the applicant
contends that she meets all the requirements for an order of mandamus to
be issued as set out in Apotex Inc v Canada (Attorney General) (CA), [1994]
1 FC 742, 18 Admin. LR (2d) 122, aff’d [1994] 3 S.C.R. 1100 [Apotex];
[20]
In response, the respondent refers to subsection
21(3) of the Act recently enacted in 2012 and submits that
granting an order of mandamus while an application for cessation of
refugee protection is pending would serve no purpose because, if granted, such
an application would annul any right to permanent residence: Tapie v Canada
(Minister of Citizenship and Immigration), 2007 FC 1048 at para 9, [2007]
FCJ No 1368 (QL); Kang v Canada (Minister of Citizenship and Immigration),
2001 FCT 1118 at paras 24-27, [2001] FCJ No 1544 (QL) [Kang].
[21]
Furthermore, the respondent argues that the
applicant does not meet the requirements for an order of mandamus to be
issued as the delay can be satisfactorily explained (Respondent’s Memorandum
and Affidavit at paras 18-28). The respondent also points out that the Act does
not prescribe any timeframe for the processing of applications for permanent
residence. Finally, the respondent emphasizes that pursuant to paragraph 3(1)(h)
of the Act, it has the responsibility to protect the health, safety and to
maintain the security of Canadians and consider any potential grounds for
inadmissibility under sections 34 to 39 of the Act.
Analysis
[22]
The Court is of the view that, considering all
the circumstances of the case at hand, an order of mandamus cannot be
issued.
[23]
Before turning to its analysis as set forth
below, the Court recalls that at the outset of the hearing before the Court,
the respondent provided the Court with a letter, an affidavit and a chain of
e-mails. The information contained in those documents indicates that the
Immigration and Refugee Protection Division has not yet ruled upon the respondent’s
January 2013 application for cessation of refugee protection. The applicant
objected to the introduction of this information. However, the Court is of the
view that the information provided by the respondent is relevant to this case
and that there is no prejudice to the applicant. It shall thus be considered by
the Court.
[24]
Turning to the requirements for an order of mandamus,
the Court notes that in Apotex, above, the Appeal Division of the
Federal Court, as it was then known, affirmed by the Supreme Court of Canada,
set them out as follows:
(a)
There must be a public legal duty to act under
the circumstances;
(b)
The duty must be owed to the applicant;
(c)
There must be a clear right to performance of
that duty, and in particular the applicant,
i)
must have satisfied all conditions precedent
giving rise to the duty; and there must have been
ii)
a prior demand for performance of the duty;
iii) a reasonable time to comply with the demand, unless there was
outright refusal; and
iv) an express refusal, or an implied refusal through unreasonable
delay;
(d)
No other adequate remedy is available to the
applicant;
(e)
The order sought must have some practical
effect;
(f)
In the exercise of its discretion, the Court
must find no equitable bar to the relief sought; and,
(g)
On a balance of convenience, an order of mandamus
should issue.
In Conille,
this Court stated that a delay in the performance of a statutory obligation can
be deemed unreasonable if the following is established:
(a)
the delay in question has been longer than the
nature of the process required, prima facie;
(b)
the applicant and his counsel are not
responsible for the delay; and,
(c)
the authority responsible for the delay has not
provided satisfactory justification.
[25]
In the present case, the respondent essentially
argues that, because of the pending application for the cessation of the
applicant’s refugee status, requirement (c) of the Apotex requirements
is not satisfied. The respondent also alleges that the applicant contributed to
the delay in the processing of her application for permanent residence by not
dispelling the uncertainty regarding her marital status coupled with the
incomplete passport provided by her husband. Thus according to the respondent,
the applicant has failed to establish that she is not responsible for the delay
as per requirement (b) in Conille. The respondent does not dispute that
the applicant otherwise meets the requirements set out in both Apotex
and Conille.
[26]
The Court acknowledges that the delay in the
processing of the applicant’s application for permanent residence is in part
due to the security inquiries conducted in connection of the applicant’s file
and the file of her husband. It is also true that the need to conduct security
enquiries can potentially be a satisfactory explanation for long processing delays
(Kang, above at para 21; Singh v Canada (Minister of Citizenship and
Immigration, [1998] FCJ No 585, (1999) 47 Imm LR (2d) 83; Chaudhry v
Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1695, 157
FTR 213; Lee v Canada (Secretary of State), [1987] FCJ No 1130, 16 FTR
314; Aowad v Canada (Minister of Citizenship and Immigration), [1997]
FCJ No 1581, 75 ACWS (3d) 928; Seyoboka v Canada (Minister of Citizenship
and Immigration), 2005 FC 1290 at para 10, [2005] FCJ No 1611 (QL); Kaur
v Canada (Minister of Citizenship and Immigration), 2002 FCT 1040, [2002]
FCJ No 1373 (QL)).
[27]
In the case at bar, more than eight (8) years to
date have elapsed since the filing of the applicant’s application for permanent
residence. The respondent points to a number of documents arguing the
complexity of the file and hence the justification for the delay. The
respondent was also of the view that the applicant was in part responsible for
the delay.
[28]
A closer review of those documents indicates
that nine (9) out of ten (10) documents referred to the respondent at the hearing
before this Court were available to the respondent prior to 2008. The Court
also observes that each time the applicant was asked to provide information or
documents it seems that she complied within the set timelines.
[29]
However, at this juncture, the Court must turn
to subsection 21(3) of the Act which provides the following:
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Status and Authorization to Enter
Permanent resident
21. (1)
…
Pending application —subsection 108(2)
(3) A person in respect
of whom the Minister has made an application under subsection 108(2) may not
become a permanent resident under subsection (2) while the application is pending.
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Statut et autorisation d’entrer
Résident permanent
21. (1)
[…]
Demande pendante —paragraphe 108(2)
(3) La
personne à l’égard de laquelle le ministre a fait la demande visée au
paragraphe 108(2) ne peut devenir résident permanent aux termes du paragraphe
(2) tant que cette demande est pendante.
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[30]
Subsection 21(3) of the Act addresses the
question of granting permanent residence in cases where the applicant for same
is the subject of an application for cessation of refugee protection. In
essence, the respondent is arguing that the Court should refrain from issuing
an order of mandamus as it is premature.
[31]
More particularly, subsection 21(3) of the Act
indicates in the English version that a person “may not become a permanent
resident” - and in the French version “ne peut devenir résident permanent” –
while an application for cessation of refugee protection under subsection
108(2) is pending.
[32]
On its face, subsection 21(3) of the Act makes
it clear that an application for cessation of refugee protection must follow
its course and that any prior pending application for permanent residence cannot
be decided until a decision is rendered on the issue of the refugee status. The
reason for this is clear: in the event the applicant is deemed inadmissible for
refugee protection, it necessary follows that the application for permanent
residence will not continue. Conversely, if the applicant’s refugee protection
is confirmed, then the application for permanent residence can resume. Hence,
pending final resolution on the issue of refugee protection, the effect of
subsection 21(3) of the Act is that the applicant does not have a “clear right
to the performance of that duty” (Apotex). To conclude otherwise, would
fly in the face of the Act’s general framework and purpose.
[33]
Finally, the Court observes that the application
for a cessation of the applicant’s refugee status under subsection 108(2) of
the Act was filed two (2) months after the applicant applied for an order of mandamus.
Although the applicant alleged that the application for a cessation of the
applicant’s refugee status by the respondent may be used as “an excuse for its
inaction and as a defence to the present Application” or an a posteriori
justification for the processing delays of the applicant’s application for
permanent residence, there is no evidence before this Court to support the applicant’s
allegation. It remains, in the circumstances, speculative.
[34]
For all of these reasons, the Court cannot grant
the relief sought by the applicant. The parties did no submit any question for
certification.
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