Date: 20080521
Docket: IMM-4359-07
Citation: 2008 FC 604
BETWEEN:
Vignarajah SELLATHURAI
Jeyanthi VIGNARAJAH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
Pinard
J.
[1]
This
is an application for an order of mandamus, requiring the respondent to
complete the processing and come to a decision regarding the applicants’
applications for permanent residence. On April 21, 2008, the applicants filed a
letter with the Court confirming that the matter had been settled, but that the
parties would appear at the hearing to request a Consent Order and to make
arguments concerning costs. At the hearing before me, both the request for a
Consent Order and arguments concerning costs were made.
[2]
The
applicants are a husband and wife from Sri Lanka. Mr.
Sellathurai came to Canada by himself and was recognized as a refugee,
then applied for permanent residence for himself and his wife on April 17,
1998.
[3]
After
two years of waiting for their permanent resident applications to be processed,
Ms. Vignarajah came to Canada on her own, and was recognized as a
refugee on January 25, 2002. She submitted her own application for permanent
residence that same year.
[4]
A
number of communications took place between the applicants and the respondent,
as well as between other authorities involved in the processing of the
applications. On June 28, 2002, a letter was sent from CSIS informing the
applicants that the results of their enquiries had been reported to Citizenship
and Immigration (CIC). The applicants were also required to attend interviews
and provide updated and further information. From the record, it appears as if
the applicants complied with all of the respondent’s requests in a timely
manner.
[5]
On
October 22, 2007, the applicants filed this application for judicial review.
The respondent submitted the affidavit of Amandeep Sangha, Supervisor of Inland
Processing Unit at the Vancouver CIC office. According to Ms. Sangha, the
applicants’ files were transferred to the Canada Border Services Agency (CBSA)
in July 2007. The CBSA informed Ms. Sangha that it will have completed its
processing on the file by June 30, 2008. Ms. Sangha affirms that the processing
of the application by CIC will be completed by August 30, 2008, if the
applicants comply with CIC’s requests, in particular, the completion of new
medical examinations.
[6]
As
mentioned above, the parties have reached a settlement, the terms of which are
the following:
(1) the Canada Border Services Agency will
make a recommendation to Canada Immigration with respect to the applicants’
security screening by June 30, 2008;
(2) Canada Immigration will
make a final decision with respect to the application for permanent residence
by June 30, 2008;
(3) if the applicants are
referred to Canada Immigration for processing, it will be completed by
August 30, 2008;
(4) the applicants will comply
with all requests for information in a timely manner to facilitate processing
of their applications.
[7]
The
only issue that arises, therefore, is whether an order for costs is
appropriate.
[8]
In
immigration matters, the awarding of costs is governed by section 22
of the Federal Courts Immigration and Refugee Protection Rules,
SOR/93-22:
|
22. No
costs shall be awarded to or payable by any party in respect of an application
for leave, an application for judicial review or an appeal under these Rules
unless the Court, for special reasons, so orders.
|
22. Sauf ordonnance contraire
rendue par un juge pour des raisons spéciales, la demande d’autorisation, la
demande de contrôle judiciaire ou l’appel introduit en application des
présentes règles ne donnent pas lieu à des dépens.
|
[9]
In
Kalachnikov v. Canada (Minister of
Citizenship and Immigration) (2003), 236 F.T.R. 142, the Court found
that a delay of three years in the processing of the applicant’s application,
which the respondent explained was due to security concerns, was unreasonable.
However, it did not order costs because it concluded that the applicant had not
demonstrated “special reasons”.
[10]
In
Abdolkhaleghi v. Minister of Citizenship and Immigration, 2005 FC 729,
[2005] F.C.J. No. 967 (T.D.) (QL), the applicant applied for an order of mandamus
after a four year delay in the processing of his application, during which the
respondent had simply stated that its investigations were ongoing. The Court
found that the respondent’s delay had been unreasonable and unjustified, and
awarded costs in accordance with Column V of Tariff B of the Federal Court
Rules, 1998, SOR/98-106.
[11]
I
do not find the case of Khorrami v. Canada (Minister of Citizenship and
Immigration) (2002), 223 F.T.R. 149, cited by the respondent, helpful, as
in that case the Court only declined to award costs due to the lack of evidence
or arguments concerning the reasonableness of the delay. In this case, the
applicant has in fact argued that the delay was unreasonable, and has submitted
persuasive evidence to this effect.
[12]
The
respondent also refers to Singh v. Minister of Citizenship and Immigration,
2005 FC 544, [2005] F.C.J. No. 669 (T.D.) (QL), and submits that it should not
be penalized for conducting the necessary background checks. In that case, the
applicant had sought an award of solicitor-client costs after a delay of twelve
years in the applicant’s permanent residence application. However, the Court
concluded that the respondent, although it had unreasonably delayed its
decision concerning the applicant’s landing, had not conducted itself in a
manner that warranted an award of solicitor-client costs. More particularly,
the respondent had not opposed leave to apply for an order of mandamus,
and had sped up the processing of the applicant’s application. The Court did,
however, award party and party costs.
[13]
In
this case, there is a delay of ten years for which the respondent has provided
little or no explanation. The respondent notes that the applicants’ files were
transferred to CBSA in July 2007. However, the applicants filed their
applications for permanent residence in 1998 and 2002. The respondent has
provided no explanation for the length of time it took to send the file to the
CBSA in the first place. In my opinion, had the respondent performed its duty
in a reasonable amount of time, the applicants would not have been forced to
incur the costs of bringing this application for judicial review (see Dragan
v. Canada (Minister of
Citizenship and Immigration), [2003] 4 F.C. 189). Therefore, I would
conclude that this is an appropriate case in which to make an award of costs,
on a party and party basis, which, pursuant to Federal Courts Rule 400(4), I
fix in the lump sum of two thousand five hundred dollars ($2,500.00).
“Yvon
Pinard”
Ottawa, Ontario
May
21, 2008
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4359-07
STYLE OF CAUSE: Vignarajah SELLATHURAI, Jeyanthi
VIGNARAJAH v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: Vancouver,
British Columbia
DATE OF
HEARING: April
30, 2008
REASONS FOR ORDER: Pinard J.
DATED: May 21, 2008
APPEARANCES:
Mr. Daniel K.
McLeod FOR THE APPLICANTS
Ms. Kimberly
Shane FOR THE RESPONDENT
SOLICITORS
OF RECORD:
Preston Clark
McLeod FOR THE APPLICANTS
Barristers &
Solicitors
Vancouver, British
Columbia
John H. Sims,
Q.C. FOR THE RESPONDENT
Deputy Attorney
General of Canada
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