Date: 20040713
Docket: IMM-8626-03
Citation: 2004 FC 981
Ottawa, Ontario, this 13th day of July, 2004
Present: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
ASIF KHAN
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application for a judicial review through which the Applicant is seeking a writ of mandamus ordering the Respondent to process the Applicant's application for permanent residence and to grant landing to the Applicant. The Applicant also requests that time limits be imposed on the Respondent on all investigations.
BACKGROUND
[2] The facts of this case are brief. The Applicant is a citizen of Pakistan seeking permanent residence in Canada. He filed an application for landing as a Humanitarian and Compassionate case on June 7, 1996. On December 9, 1998, the Respondent informed the Applicant that a delegate of the Minister of Citizenship and Immigration (the Minister), decided that there were sufficient grounds to exempt the Applicant from the requirement of subsection 9(1) of the Immigration Act, R.S.C. 1985, c. I-2, (the Act), due to sufficient humanitarian and compassionate grounds in his case. The Applicant was also advised, in the same letter, that this decision did not exempt him from meeting the other requirements of the Act such as medical and security considerations, passport possession, arrangements for care and support in Canada. The Applicant was notified that failure to comply with such requirements may result in the refusal of the application, notwithstanding the exemption granted. The Applicant has been awaiting a decision on his application ever since.
[3] On October 4, 1999, the Applicant was interviewed by CSIS and by letters dated
April 6, 2000, the Respondent made two requests to the Applicant. The first letter informed the Applicant that his application for permanent residence could not proceed until the Applicant provided a photocopy of a valid passport since his had expired. The second letter of the same date requested that the Applicant provide a Criminal Records Check/Police Certificate from Pakistan and requested his attendance at a local RCMP station in order to have his fingerprints taken.
[4] The evidence shows that these requests were complied with in a timely manner by the Applicant. Notwithstanding numerous requests by the Applicant for a decision or more information on his application, no further information was forthcoming until December 23, 2003.
[5] On December 23, 2003, the Applicant was informed by the Canada Border Services Agency that he might be inadmissible to Canada for security reasons pursuant to subsection 34(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA). He also received a letter to that effect from Citizenship and Immigration Canada on February 26, 2004. The Applicant was the subject of a report in accordance with subsection 44(1) of the IRPA. An admissibility hearing was scheduled to be held on June 3, 2004, and subsequently adjourned at the request of the Applicant to August, 10, 2004.
[6] At the hearing of this matter, counsel for the Minister offered no explanation for the delay in processing the application or as to why the application did not move forward after the information and documents requested in the April 6, 2000, letters were provided.
ISSUES
[7] The issue in this application is whether the Respondent unreasonably delayed the processing of the Applicant's application for landing such as to warrant the issuance of a writ of mandamus ordering her to complete the processing of the application.
POSITION OF THE PARTIES
[8] The Applicant submits that he has co-operated with the Respondent at all times and has satisfied all the requests made of him. He has repeatedly requested information concerning the status of his file, and still he has not received a decision from the Respondent. He submits that the unreasonable delay in processing his claim is tantamount to a refusal to decide. The Applicant also submits that the Respondent is acting in bad faith and is trying to oust the jurisdiction of this Court by filing the section 44 report and referral, and by requesting an admissibility hearing one month before the hearing on this file was to take place. The Applicant submits that to dismiss his application at this time would result in the Respondent being able to avoid a writ of mandamus simply by instigating an inadmissibility proceeding against the Applicant before the Immigration Division, and thereby argue that the application is now moving forward.
[9] The Respondent submits that this Court may not dictate the outcome of a discretionary decision by way of a writ of mandamus. The Respondent also submits that the Applicant was aware that his application for permanent residence was subject to other statutory requirements of admissibility, one of which was security concerns. The Respondent submits that these concerns are now being addressed. The Respondent adds that no final decision has been made regarding the Applicant's application for permanent residence but that the file is moving ahead. The notion of implied refusal is therefore not applicable. The Respondent finally states that the Applicant cannot now complain that the file is moving forward since that was the object of his application to this Court in the first place.
ANALYSIS
[10] It is accepted that a writ of mandamus may issue to compel the performance of a legal duty. Jurisprudence of this Court has also established that unreasonable delay in performing a statutory duty may also warrant the issuance of a writ of mandamus. Delay, in such circumstances, will be unreasonable where it has been longer than the nature the process requires. The Applicant is not responsible for the delay and no satisfactory justification has been provided for the delay [See Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33].
[11] The Respondent does not dispute that she has a legal duty to perform, ie. render a decision on the Applicant's application for landing. The evidence is also clear that the Applicant cannot be held responsible for the lengthy delays. The Respondent, moreover, has not provided any precise explanation for the long delay and simply pleads that the case is now moving forward..
[12] The unexplained delay by the Minister of five years since the time of the granting of the exemption, or over four years since the request for additional information and documents, is perplexing. On the evidence before me, however, I cannot conclude that the delay is excessive or inordinate given the nature of the process. For the reasons that follow, I decline to grant the extraordinary relief sought.
[13] The remedy sought by the Applicant in this application is to have the Minister make a decision. The evidence establishes that the file is moving forward, albeit at a very slow pace. A security report has been prepared and a hearing to determine whether there are security reasons that render the Applicant inadmissible has been scheduled for August 10, 2004. This hearing before the Immigration Division must be completed before the Minister can render a decision.
[14] It is difficult to estimate what would be a reasonable time frame for the Minister to render a decision. Either party has the right to seek judicial review of the Immigration Division's decision and there may be other factors which may justify further delay. Such factors make it difficult for the Court to impose, with any degree of certainty, a realistic time frame for the rendering of a discretionary decision by the Minister.
[15] The bringing of the within application has had the desired effect: the application is moving ahead and a hearing on admissibility is already scheduled. I am informed by counsel for the Respondent that the Minister should be in a position to render a decision within a matter of weeks after the Immigration Division renders its decision. I can only add that it is regretful that the within application was necessary to move the Applicant's application for permanent residence forward.
[16] For the above reasons, the application will be dismissed.
[17] The parties have been given the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8626-03
STYLE OF CAUSE: ASIF KHAN v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: July 7, 2004
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: July 13, 2004
APPEARANCES:
Gerald G. Goldstein FOR APPLICANT
Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Barbeau, Evans & Goldstein FOR APPLICANT
Barristers & Solicitors
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON