Date: 20000915
Docket: IMM-2805-00
BETWEEN:
DAVINDER SINGH,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
Muldoon, J.
[1] It is a mystery to this judge as to how this cause was brought on for hearing in Toronto on July 10, 2000. Ordinarily, this Court will decline to hear redundant motions in the one and same matter under the one and same docket number: i.e. IMM-2805-00.
[2] On June 13, 2000, Mr. Justice Lemieux of this Court gave reasons for his order dismissing the applicant's unrecited application as follows:
| [1] On May 31st, 2000 the applicant Davinder Singh filed a section 18.1 Federal Court Act application seeking mandamus to compel the respondent to process his application for permanent residence which he filed with the Canadian Consulate General in Buffalo, New York in February of this year. |
| [2] In the context of that mandamus application, the applicant, who is self represented, moves the Court on June 12th, 2000 for orders and directions pending its hearing and disposition. He told me at the hearing what he was seeking from the Court was an order directing the respondent to accord consideration to his outstanding permanent residence application. |
| [3] He coupled this request with another factor related to a denial by the respondent on October 27th, 1999 of a Humanitarian and Compassionate application for inland processing of a previous application for permanent residence he had made after the Refugee Division had, on June 25th, 1997 found him not to be a Convention refugee. |
| [4] One of the factors mentioned in the Humanitarian and Compassionate refusal was his conviction on three counts of sexual assault on April 6th, 1999. He appealed those convictions and these were set aside by the Ontario Court of Appeal on January 25th, 2000 with a new trial ordered. I am advised that the respondent has agreed to reconsider this Humanitarian and Compassionate application because of the Ontario Court of Appeal's decision. |
| [5] I agree with counsel for the respondent that the order sought by the applicant at this stage of his mandamus proceeding is not proper because it would in effect decide its merits i.e. that the respondent should forthwith decide on his application for permanent residence filed in Buffalo in February of this year. The outcome of that mandamus application is for another day after all of the steps prescribed by the Federal Court Rules have been satisfied. |
| [6] The applicant received a call-in notice on May 23rd, 2000. He has not received a request to report for departure. Because the applicant's motion before me did not directly seek a stay of execution from a removal order, it would not be appropriate for me to comment on the merits of such an application should it be made by the applicant at a later stage. |
| [7] For these reasons, this application will be dismissed. |
[3] The other "day for the outcome of that mandamus application" mentioned in paragraph [5] of Mr. Justice Lemieux's reasons dawned on June 13, 2000, as above noted. In effect, "left over" from the applicant's earlier application was his second prayer for relief:
| "2. An order for a writ of mandamus directing the respondent to process the application of the applicant, pending with the respondents from Feb. 2000 and issue the landing [sic] to the applicant and to his family, in accordance with the law." |
The applicant also asked for party-and-party costs and "further and other relief."
[4] At the hearing of this application on July 10, 2000, the mandamus application was transformed into a
| motion on behalf of the applicant for an order to provide adequate funding for additional staff at the consulate general in Buffalo, New York, and to issue directions to process the applicant's application for landing. |
Mandamus is a prerogative remedy and it is therefore discretionary. The principles are admirably stated by the Court of Appeal in O'Grady v. Whyte [1983] 1 F.C. 719, 42 N.R. 608, and (1982) 138 D.L.R. (3d) 167. A survey of mandamus jurisprudence is published in Apotex v. Canada [1994] 1 f.c. 742, affirmed, [1994] 3 S.C.R. 1100.
[5] In his application material, the applicant has fulminated against the respondent for "indecision", "intentionally sitting over the application", "acting malicioulsy [sic], "doing injustice", and that "the applicant has sufferred [sic] injustice for a period of five years", that "the respondents are [sic] intentionally making the applicants [sic] case an exception... which is malafide on the face of it" and so forth. In face of that unproved abuse, the applicant would be lucky to be denied his wish for party-and-party costs to be imposed in this case.
[6] At the time his application was instituted, the applicant's refugee claim made in 1995 had already been rejected, in June of 1997. In september, 1997, the applicant filed an application for landed immigrant status on (humanitarian and compassionate) H & C grounds. The applicant grumbled in Court that the respondent: "for two years... did nothing to that application. They delayed it for two years." (Transcript p.5). He continued during the hearing: "That was rejected in October 1999... they did not grant me exemption from the requirement of section 9 of the Immigration Act that I did not apply from outside Canada. And one of the factors was that I had incurred some convictions for sexual assault charges and -- but they ignored that I had filed an appeal before the Courts in Ontario... and in January 25th, 2000, those convictions were quashed and [the Ontario Court of Appeal] ordered a new trial. (Transcript pp. 5 and 6).
[7] Then the applicant's representations turned to these present proceedings, and from the ordering of a new trial in January, 2000 to the date of that quoted hearing, the applicant counted - actually, he said from February 2000 "now a period of approximately six months have passed." The hearing was held on July 10, 2000, meaning a delay, by then, of little more than 3 months. Six was an exaggeration. (Transcript p.6).
[8] The applicant told the Court that he had "appended with this motion as at page [14]" an overview of the immigration process, published by the respondent. (Transcript p. 6). Pages 8 through 11 of the transcript are worth reading in terms of the applicant's submissions. Some repetition appears in the transcript because the applicant spoke so fast that he was difficult to understand. However, he did complain that "this case is clearly a case of abuse of public office by the Minister of Citizenship and Immigration as the delay is being caused as the interference by the... Minister's conduct amounts to misfeasance in public office." And so, forth to p. 16 when the applicant is reported as asserting "I'm being harassed... without any justification...they are making this case an exception." (Transcript p. 16).
[9] The applicant intimates that he was schooled as a lawyer in his younger years. That may explain why he seems so knowledgeable about the law's terminology. It does not explain why his presentations lack a succinct character. The applicant asserted that he was specially victimized because of some involvement in local federal politics, but the explanation was not particularly credible and was given at the hearing as evidence. The applicant needs the help of a lawyer. Indeed counsel for both parties lapsed into giving evidence.
[10] The respondent's counsel pointed to the published overview of the procedure earlier mentioned by the applicant. She began by referring to the text at p. 15 of the applicant's motion record, "the outline of the process followed at the Canadian consulate in Buffalo" regarding applications for permanent residence. "It is highlighted to an applicant that the entire process may take anywhere between 6 to 18 months from beginning to end." That was step one. (Transcript p.33).
[11] "Step 2:
| 'Send your complete application package to our offices.' And then on the next page: 'The complete application package includes a signed application form for each family member with all questions answered, the correct fees, in an acceptable format, copies of documents to support your application. |
| Step 3: |
| We will create a file and assign a file number to you. Your file will be created in our system within four weeks of the date that we received your complete application package. If you did not provide the correct processing fee, your entire application package will be returned to you. If your application was incomplete, we will request the missing information from you. If your application forms were complete and your fees were correct, we will send an acknowledgement of receipt letter to you. Please allow an additional two weeks for regular mail delivery. |
[12] Counsel referred to the Computer-Assisted Immigration Processing System (CAIPS) notes. In the April 17, 2000 entry it is noted "File updated. Given team for processing." So, she asserted, at the earliest the applicant's application was not submitted completely until mid April, 2000. He failed to submit a complete application. That date was 2 1/2 months after a new trial was ordered on the charges against the applicant for sexual assault. There was no delay, except that of the applicant's own making. Now, the respondent's counsel went on the attack, complaining of the applicant's lack of evidence of wilful delay, failure to submit a complete application, and characterizing this whole application as frivolous, vexatious, and an abuse of the Court's process.
[13] Much irony is manifested in this case. The Court has recited the ingredients above. This present case has taken longer than it should because after it was heard, the applicant sought to introduce material which has not been presented lawfully or admitted into evidence, before or at the hearing on July 10, 2000, and the Court directed that introduction of such evidence needed the respondent's consent, without which, the case would not proceed. This problem was at last sorted out, and no new material was introduced, due to lack of consent.
[14] It would be a mercy to all concerned simply to dismiss this application without costs. That would be the proper, lawful disposition of it. So be it.
Ottawa, Ontario, September 15, 2000
Present: The Honourable Mr. Justice Muldoon
O R D E R
[1] UPON application by Davinder Singh for a writ of mandamus directing the respondent to process the application of the applicant, pending with the respondent from Feb. 2000 and issue the landing [sic] to the applicant and to his family, in accordance with the law, and also for an order to provide adequate funding for additional staff at the consulate general in Buffalo, New York, and to issue directions to process the applicant's application for landing, which came on for hearing in Toronto on July 10, 2000, now
THIS COURT ORDERS that the said application in both aspects be, and it is, dismissed, without costs in favour of either party.
Judge