Docket: IMM-1135-24
Citation: 2024 FC 1994
Toronto, Ontario, December 9, 2024
PRESENT: Madam Justice Go
BETWEEN: |
Masoud ALINEJAD |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Masoud Alinejad [Applicant], a citizen of Iran, applied for a temporary resident visa [TRV] in May 2022 to visit his wife and children who reside in Canada.
[2] On August 10, 2022, Immigration, Refugees and Citizenship Canada [IRCC] issued a letter to the Applicant requesting his passport to finalize the processing of his TRV application. The Applicant complied in October 2022 by submitting his passport to the Canadian Embassy in Ankara, Turkey.
[3] After making several inquiries about his application to no avail, the Applicant filed an application for leave and for judicial review [ALJR] in January 2024 requesting an order for a writ of mandamus and costs in the amount of $10,000 CAD for damages due to delay. To date, IRCC has not made a decision on the Applicant’s TRV application.
[4] For the reasons that follow, I grant the application and order the Respondent to issue a decision within 30 days of the date of this judgment.
II. Preliminary Issues
[5] There are two preliminary issues.
[6] First, the Respondent previously filed two sets of Global Case Management System [GCMS] notes in the application. The first set of GCMS notes was filed as part of the Certified Tribunal Record [CTR], and the second set was attached to the Affidavit of Brooklyn Niessen, a legal assistant of the Department of Justice [Niessen’s Affidavit]. There are several discrepancies between GCMS notes from the CTR [GCMS notes #1] and the GCMS notes from Niessen’s Affidavit [GCMS notes #2].
[7] The two sets of GCMS notes appear to have been created in different font and format, including different timestamp format. Most significantly, GCMS notes #2, which was filed after leave for judicial review was granted, contains an entry that does not appear in GCMS notes #1. Specifically, GCMS notes #2 contains an entry dated 2022/08/15, created by PR18058, labelled as “Adm/Security”
with an application status of “[v]erification activity created to prevent issuance.”
This entry does not appear at all in GCMS notes #1.
[8] At the hearing, with consent from the Applicant, I directed the Respondent to provide a post-hearing letter to explain the discrepancies. I have received and reviewed the Respondent’s explanation. According to the Respondent, the differences in the format and font are due to the use of different output file formats. The 2022/08/15 entry was not included in the CTR due to access restriction. This entry was marked as “Restricted,”
and as such, the locally engaged staff who prepared the CTR were restricted access and therefore could not see it.
[9] I accept the Respondent’s explanations as reasonable. However, they beg the question of whether the Respondent complied with the Court’s production order dated May 28, 2024, requiring the tribunal to send a copy of its “record”
to the Court and the parties within 21 days of the order, when the “record”
it sent was in fact incomplete.
[10] The second preliminary issue pertains to the Respondent’s attempt to file a third set of GCMS notes, just days prior to the hearing. Counsel for the Respondent submitted a letter dated November 29, 2024, advising the Court that IRCC received the “screening results”
from their partner earlier in November and that the Officer has to review the information provided by the partner to assess the Applicant’s admissibility. Counsel also indicated that given the short timelines, she was not able to bring a motion with this information and enclosed a copy of yet another set of GCMS notes [GCMS notes #3] with her letter. GCMS notes #3 contains several new entries, including one dated 2024/11/26 indicating “[p]artner assessment received in November 2024, pending officer review to assess admissibility.”
Counsel did not file any affidavit to submit GCMS notes #3.
[11] At the hearing, the Applicant opposed the filing of GCMS notes #3 for two reasons. First, the Respondent failed to file an affidavit and therefore GCMS notes #3 cannot be considered as evidence. Second, the new entry does not explain which partner conducted an assessment, and the lack of an actual date as to when the partner assessment was received undermines the reliability and credibility of the information reflected in the new entry. The Applicant asked the Court not to consider the GCMS notes #3.
[12] I agree with the Applicant.
[13] While the Respondent might not have had sufficient time to file a motion to submit new evidence, the Respondent failed to justify their failure to submit GCMS notes #3 through an affidavit, as they are required to do under Rule 11 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22.
[14] Without an accompanying affidavit, GCMS notes #3 is not placed before me properly and I will therefore not consider it in my decision.
[15] In the ALJR, the Applicant raises the following arguments:
a.Did the IRCC’s delay in processing the Applicant’s TRV application breach procedural fairness?
b.Do the circumstances of this case warrant a writ of mandamus to compel IRCC to process and return the Applicant’s passport?
c.Do “special reasons”
warrant the awarding of costs to the Applicant?
[16] I find the Applicant has demonstrated to the Court’s satisfaction that he meets the test for mandamus as set out in Apotex Inc v Canada (Attorney General), [1994] 1 FC 742, 162 NR 177 (FCA) [Apotex]. As the Applicant’s passport has been returned, I need not address this issue.
[17] As reproduced from Almuhtadi v Canada (Citizenship and Immigration), 2021 FC 712 [Almuhtadi] at para 30, the Applicant 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.
[18] In addition, 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.
[19] Further, 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.
[20] The Respondent’s central arguments are that: a) there is no undue delay in processing the application; and b) the Applicant has not suffered significant prejudice resulting from the delay. I reject the Respondent’s submissions.
[21] To start, I agree with the Applicant that there is unreasonable delay.
[22] According to the Applicant, the processing time on the IRCC website indicates that similar TRV applications are processed within six weeks. The Respondent disputes the Applicant’s evidence. However, even if I accept the Respondent’s evidence that at the time the Applicant submitted his TRV application, the IRCC informed Iranian applicants outside of Canada that there was a processing time of 97 days for visitor visa applications, there is still a delay of well over a year. In addition, the IRCC held the Applicant’s passport until after the Applicant filed the ALJR, without providing any update about his application, despite the Applicant’s repeated inquiries.
[23] While the Respondent relies on background checks and security screenings to justify the delay, the only evidence that the Respondent submits for this proposition is the additional entry found in the GCMS notes #2, which refers to IRCC sending the Applicant’s application for verification. As the case law confirms, simply stating that a background or security screening is ongoing, without more, is not an adequate explanation for the delay: Almuhtadi at para 40; Bidgoly v Canada (Citizenship and Immigration), 2022 FC 283 at para 46; Sowane v Canada (Citizenship and Immigration), 2024 FC 224 at para 29.
[24] I note also that the Applicant claims that he has previously visited Canada with a valid visitor’s visa and has complied with all the restrictions imposed on his residency. The Respondent does not provide any evidence to dispute that claim.
[25] With respect to the harm caused by the delay, the Applicant provided a letter to IRCC from his spouse’s obstetrician and gynecologist in November 2022 indicating that the Applicant’s spouse was pregnant and had gestational diabetes requiring insulin. After giving birth in January 2023, the Applicant’s spouse developed postpartum depression, as indicated in a letter from her psychologist dated January 31, 2023. Finally, in a letter dated December 19, 2023, counsel for the Applicant urged IRCC to process his client’s TRV application in light of his spouse’s “high-risk pregnancy”
and that she finds it stressful to raise their young children alone in Canada. In light of the evidence before the IRCC, I conclude the Applicant has demonstrated that there is significant prejudice resulting from the delay: Vaziri at para 52.
[26] In conclusion, I find that an order of mandamus is warranted.
[27] The Applicant seeks costs in the amount of $10,000 against the Respondent. However, since the Applicant does not provide any submission in support of this request, I will not order costs.
[28] The application for judicial review is granted.
[29] There is no question for certification.
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