Date: 20170728
Dockets: IMM-3171-17
IMM-3172-17
IMM-3173-17
Citation: 2017 FC 739
Ottawa,
Ontario, July 28, 2017
PRESENT: The Honourable Mr. Justice Fothergill
Docket: IMM-3171-17
BETWEEN:
SUPUN THILINA KELLAPATHA
NADEEKA DILRUKSHI NONIS PATHTHINI KUTTIGE
SETHMUNDI THILANYA KELLAPATHA
SUVASTHAKI VITHIKA DINATH KELLAPATHA
Applicants
and
THE MINISTER OF IMMIGRATION, REFUGEES AND
CITIZENSHIP
Respondent
Docket: IMM-3172-17
AND BETWEEN:
AJIT PUSHPA KUMARA DEBAGAMA KANKANAMALAGE
Applicant
and
THE MINISTER OF IMMIGRATION, REFUGEES AND
CITIZENSHIP
Respondent
Docket: IMM-3173-17
AND BETWEEN:
VANESSA MAE BONDALIAN RODEL
SANUTHI KEANA NIHINSA KELLAPATHA
Applicants
and
THE MINISTER OF IMMIGRATION, REFUGEES AND
CITIZENSHIP
Respondent
ORDER AND REASONS
I.
Overview
[1]
The Applicants are citizens of either Sri Lanka
or the Philippines. They are currently in Hong Kong, where they have resided
since at least 2010. Their refugee claims were recently rejected by the Hong
Kong authorities. An appeal is pending before the Hong Kong courts.
[2]
The Applicants have applied for permanent
residence in Canada as members of the Convention Refugees Abroad Class. They
have commenced applications for leave and judicial review of the alleged delay
by the Minister of Immigration, Refugees and Citizenship [Minister] in
processing their applications. The Applicants seek interim injunctive relief in
the nature of mandamus to compel the Minister to immediately issue
Temporary Resident Permits [TRPs] to enable them to travel to Canada and remain
in this country pending the final disposition of their claims for refugee
status.
[3]
For the reasons that follow, I conclude that a
writ of mandamus may be obtained only on an application for judicial
review under s 18.1 of the Federal Courts Act, RSC, 1985, c F-7. It cannot
be obtained on an interlocutory motion. This Court is therefore without
jurisdiction to grant the interim injunctive relief sought by the Applicants.
[4]
The Applicants’ request to consolidate the
applications for leave and judicial review is granted. Their request to expedite
the proceedings and to make oral submissions regarding the applications for
leave is refused.
II.
Background
[5]
The adult Applicants have resided in Hong Kong
since at least 2010, some of them since 2006. The minor Applicants were born in
Hong Kong, and are considered by the Hong Kong authorities to be stateless
persons. All of the Applicants sought refugee protection in Hong Kong, but this
was denied. An appeal of the denial was recently heard by the Hong Kong
judiciary, and a decision is pending.
[6]
On January 26, 2017, the Applicants applied for
permanent residence in Canada as members of the Convention Refugees Abroad
Class. They are being privately sponsored by a not-for-profit group in Montreal
called “For the Refugees”. The group was established
by their legal counsel to facilitate their applications for permanent
residence.
[7]
According to the Canadian Consulate in Hong
Kong, the normal processing time for applications for permanent residence as
members of the Convention Refugees Abroad Class is approximately 52 months, or
more than four years. On or about March 1, 2017, the Applicants asked the
Minister to expedite the processing of their applications. On May 8, 2017, an
officer with the Ministerial Enquiries Division acknowledged receipt of the
Applicants’ request, and stated the following:
[…] these applications are actively being
processed by Canadian visa officials in Hong Kong. In addition, visa officials
have recently (April 20) sent requests to the family members for updated
information and documentation, and have initiated background screening checks
on an expedited basis.
[…] it appears that the processing of these
applications has been initiated on an expedited basis, with no unforeseen
delays.
[8]
On July 5 and 7, 2017, counsel for the Applicants
sent enquiries to the Canadian Consulate in Hong Kong respecting the progress
of their clients’ applications for permanent residence. They received the
following reply:
As previously advised, we confirm the files
of your clients are in progress. The files are in queue for review.
However, please be aware that the files will
be accessed based on chronology of receipt by our office. As you can
appreciate, all Privately Sponsored Refugee applicants express concerns with
respect to their personal situation in this region and it is important for all
applicants to know that their cases be processed in order of receipt to ensure
the files are equitably and transparently managed.
[9]
On July 11 and 12, 2017, the Applicants submitted
their applications for TRPs. On July 18, 2017, the Applicants filed applications
for leave and judicial review of the Minister’s alleged delay in processing
their applications for permanent residence, and interim relief in the nature of
mandamus compelling the immediate issuance of TRPs to enable them to
travel to Canada. The Applicants filed their motion records for interim relief
on July 25, 2017, and requested a hearing on either July 26 or 27, 2017.
[10]
By letter dated July 25, 2017, counsel for the
Minister objected to the Applicants’ motions on the ground that the Court is
without jurisdiction to grant an order in the nature of mandamus as a
form of interim relief. Counsel for the Minister also objected to the lack of
notice provided by the Applicants, and urged the Court not to hear the matter
on an urgent basis, or even at all.
[11]
The Court agreed to
hear the parties on July 27, 2017, but directed that the hearing be restricted
to the following issues:
(a) whether the applications for leave and judicial review should be
consolidated;
(b) whether the Court has jurisdiction to grant the interim relief
sought by the Applicants;
(c) whether the applications for leave and judicial review should be
expedited; and
(d)
whether the parties should be permitted to make
oral submissions regarding the applications for leave.
[12]
Despite the limited scope of the hearing, both
parties opted to make initial submissions regarding the tripartite test for
interim injunctive relief prescribed by Toth v Canada (Employment and
Immigration) (1988), 86 NR 302, 6 Imm LR (2d) 123 (FCA). In order to obtain
extraordinary injunctive relief, an applicant must demonstrate that (a) there
is a serious issue to be tried, (b) the applicant will suffer irreparable harm
if the relief is not granted, and (c) the balance of convenience favours the
applicant. An applicant must satisfy each branch of the tests.
[13]
The test for establishing a serious issue to be
tried is generally low. The issue must be neither frivolous nor vexatious.
However, where granting the interim relief is tantamount to granting the relief
sought in the underlying application for leave and for judicial review, the
test is more onerous. The Court must closely examine the merits of the
underlying application, and conclude that the applicant has put forward “quite a strong case” (Baron v Canada (Public
Safety and Emergency Preparedness), 2009 FCA 81 at para 67; Wang v
Canada (Citizenship and Immigration), 2001 FCT 148 (TD)).
A.
Should the applications for leave and judicial
review be consolidated?
[14]
The parties agree that the applications for
leave and judicial review share common legal and factual issues. The Applicants
are connected by kinship or friendship, and there is a common Respondent. No
party will suffer prejudice or injustice as a result of the proposed
consolidation, and this will provide the most efficient resolution of the
matters in issue (Sanofi-Aventis Canada Inc v Novopharm Ltd, 2009 FC
1285 at para 16).
[15]
The applications for leave and judicial review
are therefore consolidated as Court File No. IMM-3171-17,
and shall be heard together.
B.
Does the Court have jurisdiction to grant the
interim relief sought by the Applicants?
[16]
The Applicants state in their applications for
leave and judicial review that they are seeking:
[…] an Order of Mandamus ordering, by
way of interim relief, the Respondent to immediately provide Temporary Resident
Permits allowing the Applicants into Canada, until such time as the Respondent
reaches a final determination on their file. [Emphasis original]
[17]
In Clifton v Hartley Bay Village Council,
2005 FC 1594 at paras 3-5 [Clifton], Justice Danièle Tremblay-Lamer
confirmed that the writ of mandamus may be obtained only on an
application for judicial review under s 18.1 of the Federal Courts Act.
It cannot be obtained on an interlocutory motion:
[3] Mandamus is an extraordinary remedy for which the Federal
Court has exclusive original jurisdiction pursuant to subsection 18(1) [of the Federal
Courts Act]. Subsection 18(3) of the Act provides the writ of mandamus,
amongst others “may be obtained only on an application for judicial review made
under section 18.1”. It cannot be obtained on an interlocutory motion. A writ
of mandamus by definition cannot be characterized as an interim relief.
(Brissett v. Canada (Minister of Citizenship and Immigration), (2002),
2002 FCT 971, 228 F.T.R. 314 at para. 12).
[4] As I stated in Delisle v. Canada (Attorney
General) (2004), 2004 FC 788, 258 F.T.R. 268 at paragraph 13:
[...]
this is a motion for an interlocutory order of mandamus. Here again, the
case law is determinative in this regard. The issuance of a writ of mandamus
is not possible in such circumstances, for it would constitute in fact an
interim declaration of right (Paquette v. Canada(Attorney General)
(2001), 2001 FCT 921, 211 F.T.R. 179 (F.C.T.D.); Brissett v. Canada (Minister
of Citizenship and Immigration) (2002), 2002 FCT 971, 228 F.T.R. 314
(F.C.T.D.)).
[5] Thus, the Court has no jurisdiction to
grant this remedy on a motion.
[18]
The Applicants rely on Canadian Council for
Refugees v Canada, 2006 FC 1046 [Canadian Council for Refugees]. In
that case, the applicants sought interim injunctive relief in the form, inter
alia, of an order directing the respondent to allow
them to enter Canada from the United States pending determination on judicial
review as to whether or not the Safe Third Country Agreement barred them from
making a refugee claim. Justice Roger Hughes held at paragraphs 8 and 9 that the general
powers of supervision given by Parliament to the Federal Court under the Immigration
and Refugee Protection Act, SC 2001, c 27, and Regulations, SOR/2002-227,
taken together with section 44 of the Federal Courts Act, gave the Court
jurisdiction to grant the type of relief requested.
[19]
Justice Hughes ultimately declined to grant the
extraordinary equitable relief sought by the applicants in Canadian Council
for Refugees on the ground that they had failed to demonstrate they would
suffer irreparable harm. His comments regarding the jurisdiction of this Court
to grant mandamus as a form of interim injunctive relief must therefore
be taken as obiter.
[20]
In my view, the analysis of Justice
Tremblay-Lamer in Clifton is to be preferred. A writ of mandamus
cannot be granted as a form of interim injunctive relief, in part because it
would amount to an interim declaration of right. The purpose of an
interlocutory motion is to preserve or restore the status quo, not to give
the applicant his remedy (Brissett v Canada (Citizenship and Immigration)
(2002), 2002 FCT 971 at para 11).
[21]
The Applicants argue that the mandamus
they seek in the underlying applications for judicial review differs from that
sought in the present motions for interim relief. The Minister responds that
the Applicants did not seek leave to commence an application for judicial
review of the Minister’s alleged delay in issuing the TRPs. The Minister says
that the Applicants cannot achieve by indirect means what they are unable to
achieve directly. In any event, for the reasons expressed by Justice
Tremblay-Lamer, the Court’s lack of jurisdiction to grant mandamus as
interim injunctive relief is independent of whether the same relief is sought
in the underlying application for judicial review.
[22]
Furthermore, mandamus is not available
unless (a) there is a public legal duty to act, (b) the duty is owed to the
applicant, and (c) there is a clear right to performance of that duty. Nor is
it available to compel the exercise of discretion in a particular way (Mersad
v Canada (Citizenship and Immigration), 2014 FC 543 at para 12 , citing Apotex
v Canada (Attorney General), [1993] 1 FC 742 at para 45 (FCA), aff’d, [1994]
3 SCR 1100). The most the Court might do in these circumstances is order that
the Canadian Consulate in Hong Kong process the Applicants’ requests for TRPs
within a reasonable time. Given that the requests were made only on July
11 and 12, 2017, it can hardly be said that there has been unreasonable delay
in the Minister’s consideration of the applications for TRPs.
[23]
I therefore conclude that the Court is without
jurisdiction to grant the interim injunctive relief sought by the Applicants.
C.
Should the applications for leave and judicial
review be expedited?
[24]
In Smith v Canada (Citizenship and Immigration),
2002 FCT 662, Justice Elizabeth Heneghan observed at paragraph 13 that an order
removing a proceeding from the usual time-frames involves an exercise of
discretion and must be related to a substantial ground arising from the
proceeding at issue. The threshold for justification is high (Manesh
v Canada (Citizenship and Immigration), 2014 FC 765 at para 46).
[25]
The Minister argues that the precedential
implications of the Applicants’ applications for leave and judicial review are
significant. The Applicants have only a tenuous connection with Canada. They
have very recently applied for permanent residence as members of the Convention
Refugees Abroad Class. They ask to circumvent the usual processes of the
Government of Canada due to the potential harm they may face as a result of
having their claims for refugee status rejected by the authorities in Hong
Kong. The Minister notes that many others in precarious circumstances around
the world are similarly-situated. If a sudden deterioration in conditions in
other countries were sufficient to compel an immediate authorization to travel
to Canada in order to pursue a refugee claim in this country, this would be a major
alteration and expansion of Canada’s approach to refugee protection.
[26]
The Minister notes that the Applicants have
resided in Hong Kong for seven years or more, and until recently have been
content to seek refugee protection in that country. Their refugee claims were
rejected by the Hong Kong authorities on May 11, 2017. Since then, they have chosen
to advance their claims for refugee protection in Canada through political
channels. They have sought the intervention of this Court at the last minute,
despite knowing for a considerable period of time that they were potentially at
risk in Hong Kong.
[27]
The Applicants argue that the assurances they
received from a representative of the Minister’s office in May 2017 created a
reasonable expectation that their applications would be decided in an
expeditious manner – within one to four months of when they were first submitted
in January 2017. They say that their cases are unique, and the potential precedential
impact of their cases is therefore small. They dispute that there has been
undue delay in asserting their rights against the Government of Canada.
[28]
The Applicants also maintain that they are at
imminent risk of harm. They say that they have been specifically targeted by
the authorities in Hong Kong, and have been ordered to report to a detention
centre for possible removal early next week. They say that human rights abuses
in Hong Kong detention centres are well-documented, and unsuccessful refugee
claimants are sometimes returned to their countries of origin even while their
appeals and other legal processes are ongoing.
[29]
The Minister has filed an affidavit from a visa
officer with the Canadian Consulate in Hong Kong who states that the notices
requiring the Applicants to report to the Castle Peak Bay Immigration Centre
indicate that the purpose is only for “signature”.
The only other possibility disclosed by the notices is that the reporting may
be for “interview”. The visa officer also
deposes that the Hong Kong courts are a well-functioning judiciary with avenues
for appeal and judicial review, and there is no reason to believe that the
Applicants will be treated unfairly.
[30]
The Minister’s response to the applications for
judicial review is currently due 30 days from the date of filing. The
Applicants’ arguments are novel, and the public policy implications are
potentially significant. The Minister should be afforded a reasonable
opportunity to respond. Considering the timing of the Applicants’ applications
for permanent residence in Canada, their requests for TRPs and the related
legal proceedings in this Court, and the speculative nature of the harm they
allegedly face in Hong Kong, I am not persuaded that this Court should exercise
its discretion to expedite the proceedings.
[31]
In the event that leave to commence the
applications for judicial review is granted, or if further developments
warrant, the request to expedite the proceedings may be revisited.
D.
Should the parties be permitted to make oral
submissions regarding the applications for leave?
[32]
The Applicants’ request to make oral submissions
regarding their leave applications was intended to facilitate the determination
of their applications for judicial review on an expedited basis. In light of the
conclusion that there are insufficient reasons to expedite these proceedings,
it is no longer necessary to consider this aspect of the relief sought by the
Applicants.
ORDER
THIS COURT ORDERS that:
1.
The motions to consolidate
the Applications for Leave and Judicial Review, Court File Nos. IMM-3171-17,
IMM-3172-17 and IMM-3173-17, are allowed. The
Applications will continue as a single proceeding, Court File No. IMM-3171-17.
2.
The motions for interim injunctive relief in the
nature of mandamus, to expedite the proceedings, and to permit oral submissions regarding the Applications for Leave
are dismissed.
“Simon Fothergill”
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