Federal Court Decisions

Date: 20050516

Docket: IMM-3782-04

Citation: 2005 FC 701

Ottawa, Ontario, May 16, 2005

PRESENT:    THE HONOURABLE MADAM JUSTICE MACTAVISH

BETWEEN:

MOHAMAD HOSAIN GHABRAI-LANGROUDI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

and THE SOLICITOR GENERAL OF CANADA

Respondents

REASONS FOR ORDER AND ORDER

[1]       Mohamed Hosain Ghabrai-Langroudi is a citizen of Iran and a Convention refugee. He applied for permanent residence in 1999. No decision has yet been made in relation to his application. By this application for judicial review, Mr. Ghabrai-Langroudi seeks an order of mandamus compelling the Minister of Citizenship and Immigration to make a decision in relation to his application for permanent residence.

[2]       Counsel for the respondent advised that the Solicitor General of Canada is a necessary party to this application, as Mr. Ghabrai-Langroudi's application for permanent residence is being held in abeyance, pending a decision on his application for ministerial relief under section 34(2) of the Immigration and Refugee Protection Act ("IRPA"). On consent, the style of cause was amended to add the Solicitor General as a respondent.

[3]       Although I have sympathy for Mr. Ghabrai-Langroudi, and am satisfied that there has been an unreasonable delay in the processing of his file, I have regretfully come to the conclusion that I cannot grant him the relief that he seeks through this application.

Background

[4]       Mr. Ghabrai-Langroudi came to Canada in 1998, and was found to be a Convention refugee the following year. He was a victim of extreme violence and torture in Iran.

[5]       On December 16, 1999, Mr. Ghabrai-Langroudi applied for what was then known as landing under the provisions of the former Immigration Act.

[6]       In September of 2000, Mr. Ghabrai-Langroudi was interviewed by the Canadian Security and Intelligence Service with respect to security matters, following which his file was referred to CSIS headquarters for further investigation.

[7]       In April of 2002, Mr. Ghabrai-Langroudi was called in for an interview with an immigration officer in order to obtain additional information with respect to his membership in the Fedayan organization and the Tudah party. The Fedayan was involved in acts of violence aimed at overthrowing the Shah and his regime.

[8]       Mr. Ghabrai-Langroudi has never made any attempt to conceal his membership in either the Fedayan or the Tudah party, and his membership in both organizations was disclosed to Canadian immigration authorities in the Personal Information Form that Mr. Ghabrai-Langroudi filed in connection with his refugee claim.

[9]       In May of 2002, Mr. Ghabrai-Langroudi was advised that he had been found to be inadmissible to Canada under section 19(1)(f)(iii)(B) of the Immigration Act (now section 34(1) of the Immigration and Refugee Protection Act), as he was a member of an organization for which there are reasonable grounds to believe had engaged in acts of terrorism. He was told that, as a result, there would be no further consideration of his application for permanent residence.

[10]     At the same time, Mr. Ghabrai-Langroudi was invited to submit an application for ministerial relief , which, if granted, would have allowed his application for permanent residence to continue to be processed.

[11]     Mr. Ghabrai-Langroudi submitted his request for ministerial relief on July 19, 2002. This application was submitted to the Minister of Citizenship and Immigration, who then had responsibility for such decisions.

[12]     Pursuant to subsection 6(3) of IRPA, the discretion to grant relief from a finding of inadmissibility is one that vests exclusively in the Minister, and cannot be delegated.

[13]     By September of 2003, a security analyst had prepared a report for the Minister with respect to Mr. Ghabrai-Langroudi's case. This report, which evidently recommended that favourable consideration be given to his request, was not provided to Mr. Ghabrai-Langroudi at that time.

[14]     Effective December 12, 2003, the decision-making function in relation to applications for ministerial relief under subsection 34(2) of IRPA was transferred to the Solicitor General of Canada.

[15]     Nothing seems to have happened in relation to Mr. Ghabrai-Langroudi's application for ministerial relief between September of 2003 and the Spring of 2005. Mr. Ghabrai-Langroudi made a number of inquiries as to the progress of his application, and was repeatedly told that it was impossible to predict when a decision would be forthcoming.

[16]     A few weeks before the hearing of this application for judicial review, Mr. Ghabrai-Langroudi was provided with a copy of the analyst's report, and was given the opportunity to provide his comments.

[17]     As was noted earlier, this report had actually been completed by September of 2003. In the circumstances, it can reasonably be inferred that the looming date for the return of Mr. Ghabrai-Langroudi's application for mandamus prompted action on his file.

[18]     At this point, the only thing left to be done in relation to Mr. Ghabrai-Langroudi's application for ministerial relief is for the Solicitor General of Canada to actually make a decision.

[19]     Mr. Ghabrai-Langroudi's application for ministerial relief has now been outstanding for nearly three years. It is common ground that there was no need to obtain information with respect to this application from any third parties. Indeed, it appears that all that had to be done was to have an analyst prepare a report for the Minister, and for the Minister to make a decision.

[20]     The only explanation offered for the delay in processing his application is 'backlogs'. Although Mr. Ghabrai-Langroudi's application has reportedly been identified as 'urgent', there is still no indication as to when a decision by the Solicitor General could be expected.

Issue

[21]     The issue for the Court is whether it is appropriate to grant Mr. Ghabrai-Langroudi the relief that he requests in his notice of application.

Analysis

[22]     What Mr. Ghabrai-Langroudi has asked for in his Notice of Application for Leave and for Judicial Review is an order of mandamus compelling the Minister of Citizenship and Immigration to make a decision in relation to his application for permanent residence.

[23]     There is no question that if the Minister of Citizenship and Immigration were to make a decision in relation to Mr. Ghabrai-Langroudi's application for permanent residence at this point, that decision would be negative. This is because Mr. Ghabrai-Langroudi has been found to be inadmissible because of his past membership in an organization for which there are reasonable grounds to believe had engaged in acts of terrorism.

[24]     In other words, if I were to grant Mr. Ghabrai-Langroudi the relief that he is seeking, he would not achieve the result that he wants, which is, of course, permanent residence in Canada.

[25]     The only way that Mr. Ghabrai-Langroudi's application for permanent residence will receive favourable consideration is if a decision is first made by the Solicitor General of Canada to grant him ministerial relief.

[26]     From my review of this file, I am satisfied that there has been 'unreasonable delay' in the processing of Mr. Ghabrai-Langroudi's application for ministerial relief, as that phrase has been interpreted in the case law: see, for example, Conille v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1553 and Bhatnager v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 315.

[27]     This delay has undoubtedly caused Mr. Ghabrai-Langroudi hardship, as he cannot be reunited with his wife and children, who are still in Iran. Separation from his family is surely all the more difficult for Mr. Ghabrai-Langroudi, as he suffers from anxiety, depression and Post-traumatic Stress Disorder as a consequence of the torture that he suffered in Iran.

[28]     Were it open to me to do so, I would have had no hesitation in ordering the Solicitor General to render a decision in relation to Mr. Ghabrai-Langroudi's application for ministerial relief within a reasonable time frame such as three months.

[29]     However, Mr. Ghabrai-Langroudi's application for judicial review does not seek such relief. In the face of an application seeking to have an order of mandamus issue against one Minister of the Crown in relation to one type of application, I do not see how I can order a different minister of the Crown to make a decision in relation to a different application.

[30]     As a consequence, I have no alternative but to dismiss this application. I do so without prejudice to Mr. Ghabrai-Langroudi's right to bring a further application for mandamus against the Solicitor General in relation to his application for ministerial relief. I would hope that it will not be necessary for him to do so.

Conclusion

[31]     For these reasons, the application is dismissed.

Certification

[32]     Neither party has suggested a question for certification, and none arises here.

ORDER

THIS COURT ORDERS that:

1.          The style of cause is amended to add the Solicitor General of Canada as a respondent;

2.         This application for judicial review is dismissed; and

3.          No serious question of general importance is certified.

"Anne Mactavish"