Askar v. Canada (Minister of Citizenship and Immigration), docket IMM-3296-99

Date: 19991102

Docket: IMM-3296-99

OTTAWA, ONTARIO, NOVEMBER 2, 1999

PRESENT:      THE HONOURABLE MR. JUSTICE LEMIEUX

BETWEEN:

     SIHAM ASKAR, MOHAMED ASKAR, RIWA ASKAR,

     RAGHIDA ASKAR, NADA ASKAR, ALI ASKAR

     and OMAR ASKAR

     Applicants

     (Respondents in this Motion)

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     (Applicant in this Motion)

     ORDER

     For the reasons given, the Minister's motion to strike is dismissed with costs.

     "François Lemieux"

    

     J U D G E

Date: 19991102

Docket: IMM-3296-99

BETWEEN:

     SIHAM ASKAR, MOHAMED ASKAR, RIWA ASKAR,

     RAGHIDA ASKAR, NADA ASKAR, ALI ASKAR

     and OMAR ASKAR

     Applicants

     (Respondents in this Motion)

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     (Applicant in this Motion)

     REASONS FOR ORDER

LEMIEUX J.:

INTRODUCTION

[1]      Pursuant to Rules 369 and 221(1)(a) of the Federal Court Rules, 1998, the respondent, the Minister of Citizenship and Immigration (the Minister) seeks to strike, as disclosing no reasonable cause of action, a section 18 application filed on July 2, 1999 in which the applicants request from this Court:

1.      an Order declaring that the Applicant, Siham Askar, continues to be a permanent resident of Canada; and

2.      an Order compelling the Department of Citizenship and Immigration to continue to process the application of Siham Askar to sponsor her husband and dependent children forthwith.

[2]      In the body of the application, the applicants say:

This is an application for Judicial Review in respect of the Visa Section of the Canadian Embassies in Beirut, Lebanon and Damascus, Syria, and the Canada Immigration Office in Edmonton, Alberta of the Department of Citizenship and Immigration.

The Applicant, Siham Askar, submitted an application to sponsor her spouse and children and her undertaking of assistance was approved by letter dated October 29, 1997 . . . but the Department of Citizenship and Immigration has wrongfully refused to continue to process her application for sponsorship overseas and the application of the Applicant, Mohamed Askar, for permanent resident status in Canada.

[3]      The Minister invokes the following grounds in support of his motion to strike:

1.      The Applicant, Siham Askar, has not exercised her right of appeal to the Immigration Appeal Board regarding the determination of her permanent resident status.

2.      In any event, the decision regarding permanent residency is one of an immigration officer or an adjudicator and accordingly, an application for judicial review of that decision may be commenced only with leave of this court pursuant to section 82.1(1) of the Immigration Act.

3.      Further, the Visa Officer in Damascus has no duty to process the application regarding Siham Askar's husband and dependants until the issue of her permanent residency is determined and accordingly mandamus is not available.

4.      The Applicant's application seeks relief in respect of two separate decisions contrary to Rule 302 of the Federal Court Rules, 1998.

5.      The Applicant has not provided the date and any details of any specific order in respect of which judicial review is being sought. (Rule 301(c)(2) Federal Court Rules) and accordingly it is not possible to determine if the Applicant has exceeded the 30 day limitation for filing of a judicial review application pursuant to section 18.1(2) of the Federal Court Act.

BACKGROUND

[4]      Siham Askar filed an affidavit in support of her application for declaration and mandamus dated July 2, 1999. She indicates she obtained permanent resident status on January 12, 1978 and her eldest son was born in Canada on May 6, 1977. She says she lived in Canada until January 1980.

[5]      In her affidavit, she indicates she left Canada in 1980 to take care of her mother-in-law who was ill. She deposes it was always her intention to return to Canada since she left her only son at the time behind in Canada. She and her husband moved in with her mother-in-law in Lebanon; her mother-in-law died in 1993. In her affidavit, Siham Askar particularizes several facts as demonstrating her intention to return to Canada.

[6]      In 1996, she returned to Canada on her own without her husband and children born in Lebanon. At Customs, she was requested by an Immigration Officer to show her permanent resident document which she did. In the fall of 1997, she sponsored her husband and remaining children in Lebanon and on October 29, 1997, she received an acknowledgement from Citizenship and Immigration Canada. That letter indicated the undertaking of assistance had been approved and forwarded to the Visa Office in Damascus which "will process the immigration application of your relative(s)".

[7]      Mohamed Askar was interviewed by the Canadian Embassy, Visa Section in Beirut on January 15, 1998. During that interview, questions were asked whether he had previously been to Canada; he said he had been granted permanent resident status but returned to Beirut in 1980. These answers raised concerns about Siham Askar's sponsorship eligibility; she had to be a permanent resident. Beirut asked that appropriate verifications take place.

[8]      Siham Askar was interviewed by CIC in Edmonton in early February, 1998 and was asked several questions about her travels and her leaving Canada in 1980. The visa office in Beirut was kept advised.

[9]      On April 2, 1998, CIC wrote a letter to Siham Askar which reads:

Another interview has been scheduled for Thursday April 16, 1998 at 1430 hrs at the office address above. Please bring any documents that you may have to prove that you have been residing in Canada for the past several years. This could include your social insurance card, tax returns and any loans or payments that you have been making.

[10]      On April 17, 1998, the day after the interview, V. Leroux made a section 27 report to the Deputy Minister. In his report, Mr. Leroux said Siham Askar was a person in Canada, other than a Canadian citizen or permanent resident. Referring to paragraph 27(2)(e) of the Immigration Act (the Act) he stated in his section 27 report Siham Askar:

Is a person in Canada, other than a Canadian citizen or permanent resident described in:

Paragraph 27(2)(e)

A person who entered Canada as a visitor and remains in Canada after that person has ceased to be a visitor, specifically;

Paragraph 26(1)(b)

Without authorization, that person attends any university or college, takes any academic, professional or vocational training course or engages in employment in Canada.

Paragraph 26(1)(c)

That person remains in Canada for a period of time greater than that for which he/she is authorized to remain in Canada.

[11]      Mr. Leroux said his section 27 report was based on information in his possession as follows:

That Siham Askar ...:

- was landed in Canada on January 12, 1978;

- came in to Canada sometime in 1996 at Calgary International Airport without obtaining a stamp in her passport and was therefore admitted as a visitor for 6 months;

- was absent from Canada between 1980 and 1996 and thereby ceased to be a permanent resident;

-has not applied for or received an extension of her visitor status, thereby ceasing to be a visitor;

-worked for her brother Sam Taliani at a deli called Sammy's Incredible Edibles, cooking and preparing food from January 31, 1997 until January 31, 1998 receiving pay of $3016.00 per month also ceasing to be a visitor.

[12]      Another interview took place on April 19, 1998. Mr. Leroux said this in terms of the interview in a communication to Beirut:

After another lengthy interview, the clients family have admitted that the sponsor of the above (Askar, Siham) was not resident in Canada from 1980 until summer 1996. She was also not admitted on an entry stamp by customs or immigration, therefore she was determined to be an out of status visitor - not a permanent resident. An application to reinstate her visitor status only has been taken at CIC Edmonton and will likely be processed favourably. She will be given a short term extension.

For your purposes, the clients are therefore not eligible to be sponsored by Siham Askar and she would like to withdraw her imm1344.

The principal applicant and his spouse do have a Canadian Citizen child who is approximately 20 years old. The family has asked if we will accept his sponsorship and match it to your current application to expedite processing. SA's are likely not met at this time, however, they can be confirmed prior to an appeal hearing or when back-ground checks and meds are finished.

Siham Askar will remain in Canada for a short period until she has to go back to Beirut to attend an interview. I would ask your office not to waive her interview, in the event an inadmissibility is found.

[13]      Siham Askar retained solicitors who wrote to CIC Edmonton in early May 1998. The subject was her status as a permanent resident. Submissions were made. Reference in the solicitor's letter was also made to an interview scheduled for May 18, 1998. The solicitor said that the Askar family would like to maintain Mrs. Askar's status as a landed immigrant.

[14]      On August 12, 1998, a conversation took place between Mr. Leroux and Mrs. Askar's solicitors. Mrs. Askar's solicitors wanted a status update and background on the case. Mr. Leroux records the following in handwritten notes:

I stated that four months ago Siham Askar was determined to be a visitor that was out of status. I had agreed to pursue reinstatement and a short term extension. I also agreed to attempt to match her son's sponsorship to the existing sponsorship.

About a month later correspondence was received from ... asking why Edmonton was going through that process rather than redetermining her to be a resident and accepting her 1344.

I replied there was no evidence that she was still a resident. She did not have a stamp in her passport, has not resided in Canada for almost 20 years and that they changed their stories several times on the date she returned to Canada. If he wanted to go through that process, I could forward a [ineligible] to him, but would likely result in pursuing a direction for an overstay. The immigration sponsorship would again be delayed, probably causing the meds and security checks to expire....

In the end, she may be removed or not but an additional several years delay would likely arise while we attempt to match ....

[15]      On September 9, 1998, Mrs. Askar's solicitors further wrote to CIC Edmonton. It was a follow-up to an interview which Mr. Leroux had with her solicitors on Monday August 31, 1998.

[16]      On October 2, 1998, Mr. Leroux wrote to Mrs. Askar as follows:

This letter was drafted in response to your letter dated September 9, 1998 addressed to Randy Gurlock, which has been assigned to me for a response. I would like to thank you for putting your concerns in writing and for outlining them in as much detail as you have. Unfortunately, very little has changed with respect to this application that could result in any other approach being taken by our department. The situation remains that Siham Askar is not entitled to sponsor her husband and children in Lebanon. The question on what option the family is going to pursue however, still remains unanswered. Until they make a decision,

and follow it through, there is really no purpose seeking further clarification or a review on this file.

[17]      In her affidavit, Siham Askar says that "I was subsequently advised orally that the application would not be processed further because I was not considered to be a permanent resident. No proceedings were ever taken with respect to my permanent resident status".

ANALYSIS

     (a)      When can an application be struck

[18]      The test for when an application for judicial review can be struck is set out in three decisions of the Federal Court of Appeal.

[19]      First, in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. et al., (C.A.), [1995] 1 F.C. 588, Strayer J.A. after contrasting the differences between the procedural rules relating to actions and applications and after indicating at page 596 that "the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself", stated at page 600:

For these reasons, we are satisfied that the Trial Judge properly declined to make an order striking out, under Rule 419 or by means of the "gap" rule, as if this were an action. This is not to say that there is no jurisdiction in this court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.

[20]      In Moldeveanu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 55, court file no. A-413-97, January 14, 1999 (F.C.A.), Décary J.A. said in paragraph 13 that "there is ample authority in this Court for the proposition that it is generally improper to file motions to strike in judicial review proceedings" adding this:

Even though the motion filed in this case was not technically speaking a motion to strike the judicial review application, the above-mentioned principle undoubtedly applies. That principle, however, which was set out in Pharmacia Inc. v. Minister of National Health and Welfare . . ., allows for a margin of manoeuvre where a proceeding "is so clearly improper as to be bereft of any possibility of success".

[emphasis mine]

    

[21]      Canadian Pasta Manufacturers' Association v. Aurora Importing & Distributing Ltd., [1997] F.C.J. No. 493, court file no. A-252-97, April 23, 1997, (F.C.A.) is an example where a judicial review application was struck. In a very short judgment, Pratte J.A. said "[W]e are all of the opinion that this application for judicial review could not possibly succeed. The application to strike will therefore be allowed".

(b)      Legislative Scheme " Abandonment of Permanent Residence

[22]      The Immigration Act (the Act) contains provisions dealing with abandonment of permanent residence and mechanisms for enforcement and determination of status. I deal with these provisions:

(a)      section 24 of the Act deals with abandonment of permanent residence. It reads:

24. (1) A person ceases to be a permanent resident when      (a) that person leaves or remains outside Canada with the intention of abandoning Canada as that person's place of permanent residence; or      (b) a removal order has been made against that person and the order is not quashed or its execution is not stayed pursuant to subsection 73(1). (2) Where a permanent resident is outside Canada for more than one hundred and eighty-three days in any one twelve month period, that person shall be deemed to have abandoned Canada as his place of permanent residence unless that person satisfies an immigration officer or an adjudicator, as the case may be, that he did not intend to abandon Canada as his place of permanent residence.

24. (1) Emportent déchéance du statut de résident permanent_:      a) le fait de quitter le Canada ou de demeurer à l'étranger avec l'intention de cesser de résider en permanence au Canada;      b) toute mesure de renvoi n'ayant pas été annulée ou n'ayant pas fait l'objet d'un sursis d'exécution au titre du paragraphe 73(1). (2) Le résident permanent qui séjourne à l'étranger plus de cent quatre-vingt-trois jours au cours d'une période de douze mois est réputé avoir cessé de résider en permanence au Canada, sauf s'il convainc un agent d'immigration ou un arbitre, selon le cas, qu'il n'avait pas cette intention.

(b)      section 27 of the Act is headed "Removal after Admission". Under subsection 27(1) an immigration officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer indicating that a permanent resident is a person described in subsequent paragraphs of that section; subsection 27(2) provides for reports by an immigration officer to the Deputy Minister setting out the details of any information in the possession of the immigration officer indicating that a person in Canada, other than a Canadian citizen or permanent resident is a person described in subsequent paragraphs of that subsection.

(c)      pursuant to subsection 27(3) the Deputy Minister, upon receiving a report pursuant to subsection (1) or (2) shall, if the Deputy Minister considers it appropriate to do so in the circumstances, forward a copy of that report to a senior immigration officer and may either direct that a determination be made with respect to all or any of the allegations mentioned in the report or, in any case, direct that an inquiry be held. If the Deputy Minister chooses to forward a copy of the report to a senior immigration officer, that senior immigration officer may exercise powers conferred upon him pursuant to subsection 27(4) including the making of a departure order. If the Deputy Minister chooses to direct that an inquiry be held, the matter goes to an adjudicator who conducts an appropriate inquiry pursuant to section 29 of the Act and may exercise the powers conferred upon the adjudicator pursuant to section 32.

(d)      subsection 70(1) of the Act provides for appeals by permanent residents and persons in possession of returning resident permits. Subject to certain exceptions, where a removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit, that person may appeal to the Appeal Division on any ground that involves a question of law or fact, or mixed law and fact; and on the ground that, having regard to all of the circumstances of the case, the person should not be removed from Canada. In Canada (M.E.I.) v. Selby, [1981] 1 F.C. 273, the Federal Court of Appeal held that an appeal route to the Appeal Division of the Immigration and Refugee Board was available to a person who, after inquiry, had been determined as a person who had abandoned permanent residence in Canada. In addition, the Federal Court of Appeal said that the question posed by subsection 24(1) is whether the permanent resident left or remained outside of Canada with the intention of abandoning Canada as a place of permanent residence. The Federal Court of Appeal held that this is a question of fact to be assessed in the first instance by an immigration officer faced with the question and to be resolved at a second stage by an adjudicator.

CONCLUSIONS

[23]      The question to be determined on this motion to strike by the Minister is whether this application for judicial review seeking a declaration and mandamus is "so clearly improper as to be bereft of any possibility of success". In my view, none of the Minister's main grounds meet this test.

[24]      First, the Minister says the applicant, Siham Askar, has not exercised her right of appeal to the Immigration Appeal Board. The problem with this submission, on the facts before me, is that the Deputy Minister has yet to exercise his authority under subsection 27(3) of the Act; as a result, neither a senior immigration officer, pursuant to subsection 27(4) of the Act or an adjudicator, pursuant to section 32 of the Act has made a removal order (defined in section 2 as meaning a departure order, an exclusion or a deportation order) against Siham Askar. A removal order or a conditional removal order against a permanent resident is a condition precedent to the exercise by that person of appeal rights under section 70 of the Act. As a result, paragraph 18.5 of the Federal Court Act is arguably inapplicable because the exception to section 18 and 18.1 is qualified by the words "to the extent that it may be so appealed".

[25]      Second, the Minister says the decision regarding permanent residency is one of an immigration officer or an adjudicator and, accordingly, an application for judicial review of that decision may be commenced only with leave of the Federal Court pursuant to section 82.1(1) of the Immigration Act. Subsection 82.1(1) of the Act provides as follows:

82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court " Trial Division.

82.1 (1) La présentation d'une demande de contrôle judiciaire aux termes de la Loi sur la Cour fédérale ne peut, pour ce qui est des décisions ou ordonnances rendues, des mesures prises ou de toute question soulevée dans le cadre de la présente loi ou de ses textes d'application " règlements ou règles " se faire qu'avec l'autorisation d'un juge de la Section de première instance de la Cour fédérale.

[26]      The applicant responds by saying that her application is not an application for judicial review of a decision or decisions of an immigration officer. She says she has never been formally advised by the Minister of Citizenship and Immigration or anyone else in the department that the applicant had lost her permanent resident status in Canada. She says that no proceedings were commenced under subsection 20(1) or section 27 of the Immigration Act to refer the question of her status to an adjudicator for inquiry. She says she believes herself to be a permanent resident of Canada and as such to have certain rights under the Act. The applicant argues her application is for a writ of mandamus which the Federal Court has exclusive jurisdiction to hear. The nature of her proceeding before the Court is by way of judicial review for a writ of mandamus to require the visa officer to process the applications for permanent residence of the applicant's husband and five children.

[27]      On the facts of this case, and what the applicant Siham Askar states in her affidavit must be taken as true, I am not prepared to hold that section 82.1(2) of the Act is a bar to her application. Simply put, Siham Askar, says she is a permanent resident in Canada and seeks to enforce her right to sponsor her family in the face of a refusal to process her sponsorship application. She says her remedy is, in the circumstances, mandamus. The fact the applicant is also seeking a declaration that she continues to be a permanent resident does not alter the analysis and does not necessarily involve a decision by an immigration officer. In the words of Strayer J.A. in David Bull Laboratories, supra, there is a debatable issue and the applicant's application cannot be said to be "bereft of any possibility of success".

[28]      Third, the Minister says that mandamus cannot lie because the visa officer in Damascus has no duty to process the application regarding Siham Askar's husband and dependents until the issue of her permanent residency is determined. This argument appears to me to contradict earlier grounds invoked by the Minister which are premised on the fact that a decision has been made in respect of Siham Askar's status. In the circumstances, it seems to me that this argument gives credence to what the applicant is saying, that is, that she has not lost her permanent residence status and accordingly, has the ability to exercise rights flowing from that status.

[29]      I also find support in the recent Federal Court of Appeal's decision in Krause et al. v. Canada et al. (1999), 236 N.R. 317. In that case, the Court undertook a fundamental analysis of section 18 of the Federal Court Act (the Act). It said this:

[23]      I agree with these submissions. In my view, the time limit imposed by s. 18.1(2) does not bar the appellants from seeking relief by way of mandamus, prohibition and declaration. It is true that at some point in time an internal departmental decision was taken to adopt the 1988 recommendations of the Canadian Institue of Chartered Accountants and to implement those recommendations in each fiscal year thereafter. It is not, however, this general decision that is sought to be reached by trhe appellants here. It is the acts of the responsible Ministers in implementing that decision that are now claimed to be invalid or unlawful. The duty to act in accordance with s. 44(1) of the PSSA and s. 55(1) of the CFSA arose "in each fiscal year". The charge is that by acting as they have in the 1993-94 and subsequent fiscal years the Ministers have contravened the relevant provisions of the two statutes thereby failing to perform their duties, and that this conduct will continue unless the court intervenes with a view to vindicating the rule of law. The merit of this contention can only be determined after the judicial review application is heard in the Trial Division.

[30]      The Court had previously noted that the meaning of the word "matter" under section 18.1 of the Act is wider than the words "decision and order". It includes any matter in respect of which a remedy may be available.

[31]      Fourthly, the Minister says the applicant's application seeks relief in respect of two separate decisions contrary to Rule 302 of the Federal Court Rules, 1998. Those two decisions are said to be the decision regarding permanent residency and also regarding the visa officer's decision to stop processing the application. On the facts of this case, it is not clear at all whether there has been a decision made with respect to Siham Askar's permanent residency status.

[32]      Finally, the Minister raises an issue that the applicant has not provided the date and details of any specific order with respect to which judicial review is being sought. The applicant Siham Askar argues no decision has been made with respect to her permanent residency. In my view, the applicant's position is arguable.

DISPOSITION

[33]      For all of these reasons, the Minister's motion to strike is dismissed with costs.

     "François Lemieux"

    

     J U D G E

OTTAWA, ONTARIO

NOVEMBER 2, 1999