Date: 20100414
Docket: IMM-3503-09
Citation: 2010 FC 405
Montréal, Quebec, April 14,
2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
SHAHID, MUHAMMAD AMIN
SAIF, SHAZIA KHALID
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application by Muhammad
Amin Shahid and Shazia Khalid Saif (together, the applicants) made pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA), for judicial review of the Minister’s failure
to take a decision on their application for landing and a remedy in the nature
of mandamus.
[2]
Mr. Shahid
was granted refugee status in May of 2001. Thereafter, on June 11, 2001, he
applied for landing so as to become a permanent resident of Canada. Although he was notified on
September 5, 2001 that he met the eligibility requirements and that a decision
would be made within 18 months, no decision has yet been made on his
application.
[3]
Ms. Saif,
his wife, came to Canada in November of 2001 and was
granted refugee status in April of 2002. Mr. Shahid included her in his
application for permanent residence.
[4]
In 2002,
Citizenship and Immigration Canada (CIC) received a letter containing grave
allegations against the applicants. However, by November 23, 2004, a decision
had been made not to investigate these allegations further.
[5]
On
November 22, 2005, Mr. Shahid was informed that his file had been transferred
to the CIC’s Montréal offices for a decision. At his request, in 2006, it was
then transferred to Calgary, where the applicants had
moved.
[6]
On October
11, 2006, CIC’s Calgary office requested additional
documentation and the results of medical exams from the applicants. The
applicants submitted these documents shortly thereafter. Apparently, some
information was still missing so that background and security checks on the
applicants could not proceed. However, they were not informed of this.
[7]
The
applicants’ counsel wrote to CIC’s Montréal office in February of 2009 to
request information on the status of their file. His request was forwarded to
CIC’s Calgary office.
[8]
The
applicants’ counsel also requested their file pursuant to the Privacy Act.
Having obtained it, he realised that the immigration authorities may have been
concerned, as early as 2007, about some conflicting information the applicants
apparently provided, and that they were never informed of these concerns. The
applicants prepared a document addressing these concerns, and their counsel
submitted it to CIC on April 7, 2009.
[9]
Having
received no response from CIC, he wrote to them again on May 20, 2009,
demanding that receipt of his letters and of the applicants’ submissions be
acknowledged and informing CIC that the applicants instructed him to seek a
writ of mandamus by June 20, 2009. CIC did not respond to this letter.
[10]
On July
10, 2009, the applicants filed this application for leave and judicial review
and requested relief in the nature of mandamus.
[11]
On July
17, 2009, CIC sent a letter to the applicants’ counsel, informing him that
their “medicals have expired and a new examination is required.” Furthermore,
CIC stated that it had not received the updated information submitted in April
of 2009 and demanded that the applicants submit it again so that security
checks could be conducted.
[12]
The
requested information was received by CIC by September of 2009.
[13]
On January
8, 2010, CIC Calgary forwarded the updated information for processing
(including new background checks) on an urgent basis. At the hearing, Counsel
for the Minister informed me that the necessary security checks have been
completed by April 8, 2010.
[14]
The
criteria which an applicant must satisfy for the Court to grant him or her
relief in the nature of mandamus are well-known. They are set out by the
Federal Court of Appeal in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742, 51 C.P.R.
(3d) 339 (aff’d by Apotex Inc. v. Canada (Attorney General), [1994] 3 S.C.R. 1100). They
are as follows:
(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 the performance of that duty, in
particular:
(a) the applicant has satisfied all
conditions precedent giving rise to the duty;
(b) there was
(i) a prior demand for performance of the duty;
(ii) a reasonable time to comply with the demand
unless refused outright; and
(iii) a subsequent refusal which can be either
expressed or implied, e.g. unreasonable delay.
(4)
No other adequate remedy is available to the applicant.
(5)
The order sought will be of some practical value or effect.
(6)
The Court in the exercise of discretion finds no equitable bar to
the relief sought.
(7)
On a “balance of convenience” an order in the nature of mandamus
should issue.
[15]
There
is and can be no dispute that the Minister has a duty to process the
applicants’ application. Subsection 21(2) of the IRPA provides in the
relevant part that “a person … determined … to be a Convention refugee …
becomes … a permanent resident if the officer is satisfied that they have made
their application in accordance with the regulations and that they are not
inadmissible.” The applicants were determined to be convention refugees.
Subject to their application being found to be in accordance with the regulations
and to their not being inadmissible they have a right to become permanent
residents.
[16]
There
is also no dispute, at this point, that the applicants have satisfied all conditions
precedent to the performance of the Minister’s duty by providing all the
necessary information. Nor is there any dispute as to the fact that they have repeatedly
demanded that the Minister perform the duty.
[17]
Thus
the sole issue in this case is whether enough time has passed since the
applicants made this demand, and whether the Minister can be inferred to have
refused to act. Apotex, above, makes it clear that such an inference may
be drawn from “unreasonable” delay in making a decision.
[18]
In
Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33, [1998]
F.C.J. No. 1553 (F.C.T.D.), I concluded that:
three requirements must be
met if a delay is to be considered unreasonable:
(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.
[19]
I agree
with the applicants that eight years is, prima facie, a much longer
delay than routine background checks require. Moreover, while it may be possible
that the applicants are responsible for some of that delay if their
applications contained contradictory information as the Minister asserts, they have
provided updated information as soon as they were asked to do so and indeed
before they were asked to do so. The period of over two years, between early
2007 and the spring of 2009, during which they were left in the dark as to
CIC’s concerns over their application is unexplained and unreasonable. It took
the applicants’ counsel’s request for their file under the Privacy Act
for them to find out why their application was not being processed. It took,
apparently, the filing of this application for mandamus for CIC to
respond to the applicants’ counsel’s letters, two of which the Minister admits
it received on February 17 and May 27, 2009, respectively.
[20]
CIC’s lack
of diligence in the applicants’ file is shocking and in direct contradiction
with IRPA’s objective, set out in its paragraph 3(1)(f), “to
support, by means of consistent standards and prompt processing, the
attainment of immigration goals established by the Government of Canada”
(emphasis mine).
[21]
In
addition, as I held in Conille, above, the necessity to conduct security
and background checks is no justification for administrative inaction. In the
absence of any statutory limits on the length of an investigation, it can serve
as a convenient excuse for indefinite delay, which the Court will not accept.
In each case, the Court must ask itself whether the facts are such that the
administrative delay is reasonable or not. Much of the delay in the case at bar
appears to be due to CIC’s neglect and is thus unreasonable.
[22]
As the
applicants have no administrative or other remedy, and the Minister has not
shown that there is any bar, whether in equity or on a balance of convenience,
to relief in the nature of mandamus in this case, I allow this
application.
[23]
An
Order in the nature of mandamus requiring the Respondent to process the
Applicant’s application of permanent residence in Canada in
accordance with the law and the Immigration and Refugee Protection Act is
issued. The Respondent shall process the Applicant’s application for permanent
residence in Canada and provide
him with a decision with respect to the issuance of permanent residence status
within three (3) months of this Order.
JUDGMENT
An Order in
the nature of mandamus requiring the Respondent to process the Applicant’s
application of permanent residence in Canada in accordance with the
law and the Immigration and Refugee Protection Act is issued. The Respondent
shall process the Applicant’s application for permanent residence in Canada and provide
him with a decision with respect to the issuance of permanent residence status
within three (3) months of this Order.
“Danièle
Tremblay-Lamer”
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