Montréal, Quebec, November 30, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
SHAN TARIQ
NUHMAN TARIQ
and
MARYAM TARIQ
and
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
(for the stay motion only)
REASONS FOR ORDER AND ORDER
[1] This is a motion for an order to obtain a stay of execution of a removal order pending against the applicants until this Court renders a final decision on their application for leave and judicial review of the lack of decision on their request for humanitarian and compassionate considerations (H & C).
[2] The present motion must fail as the applicants have failed to establish a serious question to be tried.
[3] In their underlying application for leave and judicial review, the applicants first seek an order in the nature of a writ of mandamus to force the Minister of Citizenship and Immigration to make a decision on their request for H & C. The decision that the Minister is asked to make is governed by Section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, which reads as follows:
| 25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province's selection criteria applicable to that foreign national. |
25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger -- compte tenu de l'intérêt supérieur de l'enfant directement touché -- ou l'intérêt public le justifient.
(2) Le statut ne peut toutefois être octroyé à l'étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables. |
[4] The evidence shows that on March 16, 2001, the applicants filed an H & C application which was dismissed on March 14, 2005. The applicants have chosen not to serve and file an application for leave and judicial review of the decision and are now out of time to contest this first H & C decision. While the applicants made a second H & C application, sometime in October 2005, in the present case, there is no evidence that the applicants have filed it in due time and that they have given the respondent a reasonable delay to consider it.
[5] In the new request for H & C, applicants' counsel alleges that the principal applicant is at risk because of her democratic activities over a long period of time in favour of the P.P.P. I note in this regard that the risk of return to Pakistan of the applicants has already been examined twice. First, on July 18, 2004, the Immigration and Refugee Board (IRB) dismissed the applicants' refugee claim because it was not credible; an application for leave and judicial review of that decision was subsequently dismissed by the Court. Second, on April 21, 2005, the applicants received a negative Pre-Removal Risk Assessment (PRRA). While Kelen J. granted a stay on June 30, 2005, the negative PRRA decision is no longer before the Court as Pinard J. dismissed the underlying application for leave and judicial review on August 12, 2005. The fact that the applicants are not satisfied with the result does not raise a serious issue per se. It appears that Kelen J. was satisfied that the applicants had raised a serious issue with respect to the PRRA officer not having given proper weight to the death of the principal applicant's husband and his death certificate. At this point, it is too early to infer that the officer who will study the new H & C application will not give proper weight to the death of the principal applicant's husband and his death certificate or to any additional evidence on the risk of return submitted by the applicants. As for the best interest of the children, it has already been assessed in the first H & C application.
[6] The requirements for the issuance of a writ of mandamus have been clearly set out by the jurisprudence. In Karavos v. Toronto & Gillies (1948), 3 D.L.R. 294 (Ont. C.A.), the Ontario Court of Appeal stated these criteria for the issuance of a writ of mandamus:
(1) A clear, legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced
(2) The duty whose performance it is sought to coerce by mandamus must be actually due and incumbent upon the officer at the time of seeking the relief, and the writ will not lie to compel the doing of an act which he is not yet under obligation to perform;
(3) That duty must be purely ministerial in nature, "plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers";
(4) There must be a demand and refusal to perform the act which it is sought to coerce by legal remedy.
[7] In Mensinger v. Canada(Minister of Employment and Immigration, [1987] 1 F.C. 59 (F.C.T.D.), Justice Rouleau used the same four criteria at paragraph 16:
There are four requirements for the issue of a writ of mandamus: there must be a legal right to performance of the duty by the statutory authority; there must be proof that performance of the duty is due because the court will not enforce a future obligation; the function must be ministerial, that is, there must be no discretion in the decision-maker to perform the duty and there must be a prior demand that the duty be performed and a refusal to do so. Karavos v. The City of Toronto and Gillies, [1948] O.W.N. 17 (C.A.).
[8] However, since these decisions were rendered, the number of criteria required in order to grant a mandamus has grown in size. In Apotex Inc. v. Canada (A.G.), [1994] 1 F.C. 742 (F.C.A.) at paragraph 45, the Federal Court of Appeal stated:
Several principal requirements must be satisfied before mandamus will issue. The following general framework finds support in the extant jurisprudence of this Court (see generally O'Grady v. Whyte, [1983] 1 F.C. 719 (C.A.), at pages 722-723, citing Karavos v. Toronto & Gillies, [1948] 3 D.L.R. 294 (Ont. C.A.), at page 297; and Mensinger v. Canada(Minister of Employment and Immigration), [1987] 1 F.C. 59 (T.D.), at page 66.
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.
4. Where the duty sought to be enforced is discretionary, the following rules apply:
(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as "unfair", "oppressive" or demonstrate "flagrant impropriety" or "bad faith";
(b) mandamus is unavailable if the decision-maker's discretion is characterized as being "unqualified", "absolute", "permissive" or "unfettered";
(c) in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to "irrelevant", considerations;
(d) mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way;
(e) mandamus is only available when the decision-maker's discretion is "spent"; i.e., the applicant has a vested right to the performance of the duty.
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.
[9] I note that these criteria were applied in an immigration law context in the decision rendered in Dragan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 211, aff'd 2003 FCA 233 which related to delays incurred in the processing of visa applications. At paragraph 39, Kelen J. notes:
In Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), affd [1994] 3 S.C.R. 1100, the [page212] Federal Court of Appeal conducted an extensive review of the jurisprudence relating to mandamus and outlined the following conditions that need to be satisfied for the Court to issue a writ of 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 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.
[10] In the case at bar, there is no serious allegation made in the applicants' representations that any of the requirements mentioned above for the issuance of a mandamus order are met here. The fact that there is a pending H & C application does not in itself warrant a deferral, especially when it is as late as in the present case. (see Benitez v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1307, F.C.J. No. 1802 (F.C.), Wright v. Canada(Minister of Citizenship and Immigration), 2002 FCT 113, 20 Imm. L.R. (3d) 97, Thirunavukkarasu v. Canada(Minister of Citizenship and Immigration), 2003 FC 1075, F.C.J. No. 1350 (Q.L.))
[11] In their underlying application for leave and judicial review, the applicants further seek a declaration that the situation in Pakistan is one where there is a consistent pattern of gross, flagrant or mass violations of human rights within the meaning of subsection 3(2) of the United Nations' Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, UN GAOR, Supp. No. 51, U.N. Doc. A/39/51 (1984) at 197. This general declaration would be completed by another declaration to the effect that the deportation of the applicants would be contrary to the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter), and Canada's international human rights obligations.
[12] It must be said in the first place that, under section 24 of the Charter, this Court does not possess the inherent power to make the general declaration sought, unless it flows from the exercise of the Court's statutory powers under sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7. Presently, there is no decision to review or set aside. Moreover, there is no evidence before this Court that the officer who will examine the new H & C application will act in a manner contrary to the law. Consequently, the declaratory relief sought here is premature.
[13] It will not be necessary that I examine the additional evidence on the risk of return submitted by the applicants. The tri-partite test established by the Federal Court of Appeal in Toth v. Canada(Minister of Employment and Immigration), (1988) 86 N.R. 302 (F.C.A.) is cumulative. In view of the fact that I find no serious issue, there is no need to determine whether the irreparable harm and balance of convenience elements of the test would or would not be met in this case.
ORDER
THIS COURT ORDERS that the stay motion made by the applicants in the present file be dismissed.
"Luc Martineau"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6872-05
STYLE OF CAUSE: FARHAT TARIQ ET AL.
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION ET AL.
Respondents
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 28, 2005
REASONS FOR ORDER: MARTINEAU J.
APPEARANCES:
| Stewart Istvanffy
|
|
| Sherry Rafai Far
|
SOLICITORS OF RECORD:
| Stewart Istvanffy Montréal, Quebec
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Montréal, Quebec
|