Docket: IMM-10902-23
Citation: 2024 FC 1982
Toronto, Ontario, December 6, 2024
PRESENT: Madam Justice Go
BETWEEN: |
Mansoureh ABBASY Mohammad AGHAYI MOTAALEGHI Homayoun AGHAYI MOTAALEGHI |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Mansoureh Abbasy, Mohammad Aghayi Motaaleghi, and Homayoun Aghayi Motaaleghi [Applicants], are citizens of Iran. On February 17, 2022, Ms. Abbasy [Principal Applicant or PA] applied to Immigration, Refugees and Citizenship Canada [IRCC] for a Study Permit to pursue PhD studies at the University of Manitoba. The PA’s spouse and son applied for Temporary Resident Visas [TRVs] to accompany her to Canada.
[2] As IRCC has yet to make a decision with regard to the Applicants’ applications for a study permit and TRVs, the Applicants seek a judicial review requesting an order for a writ of mandamus. For the reasons that follow, I dismiss the application.
II. Analysis
[3] The Applicants must demonstrate to the Court’s satisfaction that they meet the mandamus test as set out in Apotex Inc v Canada (Attorney General), [1994] 1 FC 742, 162 NR 177 (FCA) [Apotex].
[4] As reproduced from Almuhtadi v Canada (Citizenship and Immigration), 2021 FC 712 at para 30, the Applicants must satisfy the following eight conditions before the Court will exercise its discretion to issue mandamus:
1.There must be a public legal duty to act;
2.The duty must be owed to the applicant;
3.There is a clear right to performance of that duty;
4.Where the duty sought to be enforced is discretionary, consideration must be given to the nature and manner of exercise of that discretion;
5.No other adequate remedy is available to the applicant;
6.The order sought will be of some practical value or effect;
7.There is no equitable bar to the relief sought; and
8.On a “balance of convenience,”
an order of mandamus should be issued.
[5] The Court outlined three requirements that must be met if a delay is to be considered unreasonable in Conille v Canada (Citizenship and Immigration), [1999] 2 FC 33, 159 FTR 215 (TD):
1.The delay in question has been longer than the nature of the process required, prima facie;
2.The applicant and his counsel are not responsible for the delay; and
3.The authority responsible for the delay has not provided satisfactory justification.
[6] In addition to establishing the delay is unreasonable, the Applicants must demonstrate there is “significant prejudice”
caused by the delay: Vaziri v Canada (Citizenship and Immigration), 2006 FC 1159 [Vaziri] at para 52, citing Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 at para 101; Chen v Canada (Citizenship and Immigration), 2023 FC 885 at para 16.
[7] The Applicants submit that they meet the Apotex test based on the following factors:
a.IRCC has a public legal duty to act and that duty is owed to the Applicants. Since a TRV application is a class of immigration application under the Immigration and Refugee Protection Regulations, SOR/2002-227, IRCC owes the Applicants the duty to process their applications “within a reasonable period of time:”
Jia v Canada (Citizenship and Immigration), 2014 FC 596 [Jia]at para 78.
b.The IRCC website indicates a processing time of six weeks for similar TRV applications. As the Applicants’ applications remain pending without determination for 20 months, their case is one of inexplicable and unreasonable delay: Mersad v Canada (Citizenship and Immigration), 2014 FC 543 at para 17.
c.The IRCC acted in bad faith by allowing their TRV applications to remain pending for 20 months. Further, the delay is not the fault of the Applicants.
d.The Court in Debora Bhatnager v Canada (Employment and Immigration), [1985] FCJ No 147, [1985] 2 FC 315 at para 14 indicated that “mandamus can issue to require that some decision be made. Normally this would arise where there has been a specific refusal to make a decision, but it may also happen where there has been a long delay in the making of a decision without adequate explanation.”
[8] By contrast, the Respondent submits the Applicants have not established that there is an unreasonable delay in processing their TRV applications. Furthermore, the Applicants have not proved any aspect of prejudice, nor significant prejudice as a direct result of the delay, citing Vaziri at paras 50, 52 and Jia. As a result, the test for mandamus is not made out and this remedy should not issue.
[9] In Jia, the Court stated at para 89 that “when evaluating whether a delay in processing a visa application has been unreasonable, the Court must have regard to all pertinent circumstances. These include the volume of applications received and the priorities and targets set by the Minister….”
The Court in Jia found, in that case, that the delays faced by the applicants were not unreasonable. As the Court explained in para 90, “there is no evidence that any of their applications has been taken out of its proper place in the queue or otherwise ignored by the respondent. Rather, … the delay in processing has simply been a function of the huge numbers of applications received and the quotas and processing priorities that the Minister legitimately set under the authority afforded him under the Act and Regulations.”
Ultimately, the Court in Jia found that although the applicants may well have experienced hardship due to the delay, these concerns did not translate into an entitlement to an order in the nature of mandamus.
[10] I find the Applicants’ failure to adduce evidence showing significant prejudice is fatal to their mandamus request.
[11] As the Respondent points out, the Applicants provide no evidence of prejudice, as required by the jurisprudence. Rather, the Applicants merely state in their reply memorandum that the delay has caused them substantial harm which includes the PA missing her study program start date as well as missing the opportunity to earn a PhD degree in Canada. The Applicants further assert that the harm also includes the PA potentially losing the full scholarship that has been awarded to her.
[12] While I note the PA did mention in some of her correspondences to IRCC that her admission to the PhD program was time sensitive and that the PA had to defer her admission three times, the PA does not point to any evidence about the harm that the deferral may have caused. The Applicants also do not refer to any document in the record that may support their assertion that the PA would lose the full scholarship due to the delay.
[13] I also note that according to an email dated May 5, 2023 from the PA to IRCC, the PA received another admission letter to start the PhD program in September 2023 and that this was her final opportunity to attend the university. At the hearing, I asked counsel for the Applicants about this letter and counsel confirmed that the September 2023 deferral was indeed the final one the university had granted. I then asked counsel if that was the case, whether I should dismiss the application on the ground that an order would have no practical value or effect. Counsel then immediately advised the Court that the PA has just received another deferral for another year the morning of the hearing.
[14] The fact that the university has deferred the admission for another year, coupled with the lack of evidence on the record about any loss of the scholarship, lead me to conclude that the Applicants fail to demonstrate any significant prejudice caused by the delay.
[15] I disagree with counsel’s submission that in each mandamus application, the key issue is different, and that the key issue in this case is the unreasonable delay and not the issue of prejudice. With respect, the Applicants’ argument misconstrues the conjunctive nature of the Apotex test.
[16] As the Applicants fail to satisfy each element of the mandamus test, I therefore dismiss the application.
[17] The application for judicial review is dismissed.
[18] There is no question for certification.
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