Docket: T-483-14
Citation:
2014 FC 915
Ottawa, Ontario, September 24, 2014
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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DENIS TUMARKIN, LIUDMILA TUMARKINA and ELENA TUMARKINA
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Applicants
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application in the nature of mandamus
based on the allegation of undue delay in the processing of the Applicants’
citizenship applications by Citizenship and Immigration Canada [CIC]. The
Applicants also seek an order requiring the Respondent to sever Mr. Tumarkin’s
application from the citizenship applications of his wife and daughter in order
to expedite their applications independent of his (husband/father’s)
application.
[2]
This application is made in the face of an
ongoing investigation of Mr. Tumarkin’s admissibility as a permanent resident.
[3]
The Applicants had initially raised issues of s
7 and 15 of the Charter but counsel correctly noted that this
application is an issue of unreasonable delay and ceased to press the Charter
issues. The Court concurs with counsel’s position that this judicial review is
governed by the basic principles of mandamus. The Charter issues
need not be addressed.
II.
Background
[4]
The pertinent legislative provisions are:
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5. (1) The Minister shall grant citizenship to any person who
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5. (1) Le ministre attribue la citoyenneté à toute personne qui, à
la fois :
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(a) makes application for citizenship;
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a) en fait la demande;
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(b) is eighteen years of age or over;
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b) est âgée d’au moins dix-huit ans;
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(c) is a permanent resident within the
meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
and has, within the four years immediately preceding the date of his or her
application, accumulated at least three years of residence in Canada
calculated in the following manner:
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c) est un résident permanent au sens du
paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés
et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au
Canada pendant au moins trois ans en tout, la durée de sa résidence étant
calculée de la manière suivante :
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(i) for every day
during which the person was resident in Canada before his lawful admission to
Canada for permanent residence the person shall be deemed to have accumulated
one-half of a day of residence, and
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(i) un demi-jour pour chaque jour de résidence au Canada avant son
admission à titre de résident permanent,
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(ii) for every day
during which the person was resident in Canada after his lawful admission to
Canada for permanent residence the person shall be deemed to have accumulated
one day of residence;
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(ii) un jour pour chaque jour de résidence au Canada après son
admission à titre de résident permanent;
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(d) has an adequate knowledge of one
of the official languages of Canada;
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d) a une connaissance suffisante de l’une des
langues officielles du Canada;
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(e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
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e) a une connaissance suffisante du Canada et
des responsabilités et avantages conférés par la citoyenneté;
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(f) is not under a removal order and
is not the subject of a declaration by the Governor in Council made pursuant
to section 20.
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f) n’est pas sous le coup d’une mesure de renvoi
et n’est pas visée par une déclaration du gouverneur en conseil faite en
application de l’article 20.
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…
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…
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14. (1.1) Despite subsection (1), the citizenship judge is not
authorized to make a determination until
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14. (1.1) Malgré le
paragraphe (1), le juge de la citoyenneté ne peut statuer sur la demande :
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(a) the completion of any
investigation or inquiry for the purpose of ascertaining whether the
applicant should be the subject of an admissibility hearing or a removal
order under the Immigration and Refugee Protection Act or whether
section 20 or 22 applies to the applicant; and
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a) tant que n’est pas terminée l’enquête menée
pour établir si le demandeur devrait faire l’objet d’une enquête dans le
cadre de la Loi sur l’immigration et la protection des réfugiés ou
d’une mesure de renvoi au titre de cette loi ou si les articles 20 ou 22
s’appliquent à l’égard de celui-ci;
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(b) if the applicant is the subject of
an admissibility hearing under the Immigration and Refugee Protection Act,
a determination as to whether a removal order is to be made against that
applicant.
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b) lorsque celui-ci fait l’objet d’une enquête
dans le cadre de la Loi sur l’immigration et la protection des réfugiés,
tant qu’il n’a pas été décidé si une mesure de renvoi devrait être prise
contre lui.
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Citizenship Act, RSC 1985,
c C-29
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36. (1) A permanent resident or a foreign national is inadmissible
on grounds of serious criminality for
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36. (1) Emportent
interdiction de territoire pour grande criminalité les faits suivants :
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(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of
imprisonment of at least 10 years, or of an offence under an Act of
Parliament for which a term of imprisonment of more than six months has been
imposed;
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a) être déclaré coupable au Canada d’une
infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans ou d’une infraction à une loi fédérale pour laquelle un
emprisonnement de plus de six mois est infligé;
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(b) having been convicted of an
offence outside Canada that, if committed in Canada, would constitute an
offence under an Act of Parliament punishable by a maximum term of
imprisonment of at least 10 years; or
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b) être déclaré coupable, à l’extérieur du
Canada, d’une infraction qui, commise au Canada, constituerait une infraction
à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans;
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(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term
of imprisonment of at least 10 years.
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c) commettre, à l’extérieur du Canada, une
infraction qui, commise au Canada, constituerait une infraction à une loi
fédérale punissable d’un emprisonnement maximal d’au moins dix ans.
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…
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…
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42. A
foreign national, other than a protected person, is inadmissible on grounds
of an inadmissible family member if
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42. Emportent, sauf pour le résident permanent ou une personne
protégée, interdiction de territoire pour inadmissibilité familiale les faits
suivants :
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(a) their accompanying family member or, in prescribed
circumstances, their non-accompanying family member is inadmissible; or
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a)
l’interdiction de territoire frappant tout membre de sa famille qui
l’accompagne ou qui, dans les cas réglementaires, ne l’accompagne pas;
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(b) they are an accompanying family member of an inadmissible
person.
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b) accompagner, pour un membre de sa famille,
un interdit de territoire.
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Immigration and Refugee Protection Act, SC 2001, c 27
[5]
The Applicants are a family from Russia. Mr. Tumarkin is (was) a lawyer and businessman. The Applicants arrived in Canada as permanent residents in May 2009.
On October 10, 2012,
they applied for Canadian citizenship.
[6]
On March 8, 2013, Mr. Tumarkin was informed that
Canada Border Services Agency [CBSA] had reasonable grounds to believe that he
was inadmissible under the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] , s 36(1) because of his “criminal
conviction(s)”. Mr. Tumarkin also received a s 44(1) report based on
information that he had been charged with one count of swindling. This charge
is equivalent in Canada to fraud of over $5,000.
[7]
Mr. Tumarkin responded that it was a bogus
charge, which could have been fabricated by any of his opponents or former
clients in Russia. He further submitted a report from a Russian lawyer
confirming that there were no such charges against him.
[8]
In June 2013, the Respondent issued Mr. Tumarkin
a Residency Questionnaire which was responded to in August 2013.
[9]
On December 18, 2013, the Applicants demanded
(a) an explanation for the delay in processing the citizenship applications;
(b) the applications of Mrs. Tumarkina and the daughter be separated from Mr.
Tumarkin and processed without delay; and (c) Mr. Tumarkin’s application also
be processed without delay.
[10]
The Respondent, in respect of the request to
separate the processing of the applications [splitting the file], responded
that the request to split the file is only considered in certain circumstances
and that for the time being, the applications would remain in the queue for
processing together as a family.
[11]
As conceded, the only issue is whether a writ of
mandamus should be issued splitting the file and the respective split
applications be processed forthwith.
The
critical issue is the “forthwith” aspect of the relief, as there is no evidence
that the applications are not in process. The question is whether the delay to
date in deciding the applications is reasonable.
III.
Analysis
[12]
It is worth noting that 23 months have elapsed from
the filing of the citizenship applications to date; and particularly, 16 months
had elapsed from that filing date to the initiation of these court proceedings.
[13]
The basic principal factors for a mandamus
application are well settled and as outlined in Apotex Inc v Canada (Attorney General), [1994] 1 FC 742 (affirmed [1994] 3 S.C.R. 110) at paragraph 45,
they are:
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, 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; …
…
5. No other adequate remedy is
available to the applicant: …
6. The
order sought will be of some practical value or effect: …
7. The
Court in the exercise of its discretion finds no equitable bar to the relief
sought: …
8. On
a "balance of convenience" an order in the nature of mandamus should
(or should not) issue.
[14]
As established in Conille v Canada (Minister of Citizenship and Immigration), [1999] 2 FC 33, 87 ACWS (3d) 24, mandamus
is available in citizenship matters – in the appropriate circumstances.
[15]
The matter of splitting a file is not a separate
stand alone right. It is a process or ameliorating remedy designed to avoid
unreasonable delay for those applicants who might otherwise be delayed where
there is no justifiable linkage to the file which is being delayed for good
reason.
A.
Mr. Tumarkin’s File
[16]
The Applicants have not established that Mr.
Tumarkin’s file is not being acted upon. While there is no evidence of a
conviction in Russia, there is some suggestion of possible pending charges. The
Respondent has a duty to determine the status of Mr. Tumarkin’s charges (if
any) in Russia but there is no evidence of a refusal to inquire or unreasonable
delay in this determination.
[17]
Given the importance of granting citizenship and
the corresponding difficulty in revoking citizenship, it is not unreasonable
for officials to be diligent in ensuring that they have the necessary facts.
While the delay in determining Mr. Tumarkin’s criminal charge circumstances in Russia cannot continue forever, there is nothing to suggest that CBSA officials have been
unresponsive, slow or have otherwise not dealt with the issue in a reasonable
manner.
[18]
While average waiting times are not necessarily
determinative of acting “within a reasonable time”, such averages give a
benchmark from which to assess delay regarding both the particular file and the
system. In this case, the processing of Mr. Tumarkin’s application falls within
the average wait time and there is no evidence that the average is created by a
malfunctioning under-resourced system.
[19]
As the Applicants have not shown that there is
either a refusal to process (actual or deemed) or that the delay is unreasonable,
no writ of mandamus will be granted. Not only is there the issue of
possible charges in Russia but the Residency Questionnaire is still an active
matter.
B.
Mrs. Tumarkina and daughter
[20]
The Applicants claim that the applications of
Mrs. Tumarkina and the daughter ought to be severed from that of Mr. Tumarkin
and processed separately and forthwith.
[21]
The Respondent has a policy in respect of
splitting files to avoid delay in processing applications, which would
otherwise be linked to a delayed application – for example, to deal with
language testing.
[22]
Whether a file should be split is a matter of
discretion rather than of right. It is therefore not amenable to mandamus.
An unreasonable exercise of discretion is a matter for such remedies as certiorari
or declaration.
[23]
Mrs. Tumarkina and the daughter are entitled to
the same right of processing in a reasonable time as is Mr. Tumarkin. There is
a rational and legal connection between Mr. Tumarkin’s application and those of
Mrs. Tumarkina and the daughter because there is an outstanding residency
questionnaire.
[24]
As Mr. Tumarkin’s admissibility status is a live
issue, there is a reasonable basis for maintaining the linkage with all family
members. Additionally, the processing of the applications of Mrs. Tumarkina and
the daughter is currently not outside the average waiting times.
[25]
Therefore, the delay in processing Mrs.
Tumarkina’s and the daughter’s applications is reasonable.
IV.
Conclusion
[26]
For these reasons, this judicial review will be
dismissed with costs. The dismissal of this judicial review is without
prejudice to the Applicants or any of them bringing another application for
similar or other relief at the appropriate time.
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