Date: 19981028
Docket: IMM-636-98
BETWEEN: GHULAM QADIR CHAUDHRY
Applicant
AND:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
TEITELBAUM, J.
[1] This is an application for judicial review and for mandamus ordering the Respondent to provide an answer to the Applicant's application for permanent residence filed on June 30, 1995.
[2] The following are the most relevant facts relating to the present application.
[3] The Applicant is a citizen of Pakistan. He is 59 years old. He came to Canada on November 8, 1994 and claimed refugee status on November 9, 1994. His refugee claim was determined without a hearing by the Immigration and Refugee Board, Convention Refugee Determination Division (IRB) on June 27, 1995. On June 30, 1995, the Applicant submitted a Convention Refugee Application for permanent residence in Canada to the Case Processing Center (CPC) in Vegreville, Alberta. On July 25, 1995, the Applicant was advised by the Department of Citizenship and Immigration Canada (CIC) that his application for permanent residence in Canada had received approval in principle. The Applicant is also told in this letter that "twelve months may pass before you and your dependants will receive your permanent resident status". The said letter also states that a final decision will only be made "once all legal requirements have been met for you and your dependants" and that the Applicant must provide various documents and certificates. By September 6, 1995, the Applicant had filed all of the requested documents and certificates. On November 16, 1995, the Applicant received a letter from "CPC" Vegreville advising him that it could take one year or more for the Security, Criminality and Medical checks to the completed after approval in principle of his application which was July 25, 1996.
[4] On December 18, 1996, the Applicant wrote to the Security Intelligence Review Committee to submit an affidavit wherein he states that he had no involvement in activities which could be deemed a security risk for Canada. In the said affidavit, he states, in paragraphs (e) to (i):
| ".... |
| (e) that I suspect I am being roped in the unwanted/objectionable activities by the Canadian Intelligence Security Services. |
| (f) that I did show my sympathies to INDIAN Sikhs on 3 different occasions in which I expressed my individual concern about the gross human rights violation of Sikh community in Punjab. |
| (g) that my intention to raise public speak for the human rights violations of Sikhs in INDIA is with an intent to let the whole world know that the violations are the result of gross abuse of Indian democracy. |
| (h) that I am not associated with any person or persons in PAKISTAN, in INDIA and in CANADA who may have violent approach to the resolution of Sikhs problem in INDIA. |
| (i) that I am also not concerned with any intelligence agency from PAKISTAN or elsewhere. |
[5] Subsequent to the filing of the above affidavit, the Applicant received a letter dated January 31, 1997 from the Director General of CSIS to inform the Applicant that CSIS received a request from CIC for a security enquiry relative to his application for permanent residence. On February 18, 1997 and on April 15, 1997 CSIS informed the Applicant by letter, that they were still pursuing their screening function and making every effort to ensure that his application was processed as quickly as possible.
[6] Much has transpired after April 15, 1997. (See paragraphs 25 to 55 of the Applicant's affidavit sworn to on March 5, 1998 and the affidavit of Heather Weil sworn to on September 1, 1998).
[7] Notwithstanding the activity, no decision was made with regard to the Applicant's application for permanent residence which caused the Applicant to file the present application.
[8] Section 46.04(1) of the Immigration Act states:
| 46.04(1) Any person who is determined by the Refugee Division to be a Convention refugee may, within the prescribed period, apply to an immigration officer for landing of that person and any dependant of that person, unless the Convention refugee is |
46.04(1) La personne à qui le statut de réfugié au sens de la Convention est reconnu par la section du statut peut, dans le délai réglementaire, demander le droit d'établissement à un agent d'immigration pour elle-même et les personnes à sa charge, sauf si elle se trouve dans l'une des situations suivantes: |
| a) a permanent resident; |
a) elle est un résident permanent; |
| b) a person who has been recognized by any country, other than Canada, as a Convention refugee and who, if removed from Canada, would be allowed to return to that country; |
b) un autre pays lui a reconnu le statut de réfugié au sens de la Convention et elle serait, en cas de renvoi du Canada, autorisée à retourner dans ce pays; |
| c) a national or citizen of a country,other than the country that the person left, or outside of which the person remains, by reason of fear of persecution; or |
c) elle a la nationalité ou la citoyenneté d'un autre pays que celui qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée; |
| d) a person who has permanently resided in a country, other than the country that the person left, or outside of which the person remains, by reason of fear of persecution, and who, if removed from Canada, would be allowed to return to that country. |
d) elle a résidé en permanence dans un autre pays que celui qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée et elle serait, en cas de renvoi du Canada, autorisée à retourner dans ce pays. |
[9] In that 46.04(1)(a)(b)(c) and (d) are not applicable to the Applicant, the Applicant applied for landing on June 30, 1995.
[10] Pursuant to section 46.04(6) the decision on the application is to be made as soon as possible:
|
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[11] The application for permanent residence of the Applicant was made, as above stated, on June 30, 1995 but was received by Immigration authorities on July 10, 1995.
[12] Ms. Heather Weil, in her affidavit, states in paragraphs 7 to 11 the following:
| 7. With respect to the security clearance, the Canadian Security and Intelligence Service (hereafter "CSIS") conducted a first interview with the Applicant on November 27, 1996. |
| 8. On November 28, 1996, CSIS conducted a second interview with the Applicant. |
| 9. On December 4, 1997, Security Review received a report from CSIS with respect to the security interviews carried out on the Applicant. |
| 10. The Applicant's file now forms part of the backlog of cases at Security Review and it is estimated that Security Review will be in a position to make a recommendation to the local Canadian Immigration Center (CIC) on the Applicant's application for permanent residence in approximately eight to ten months. |
| 11. Depending on the nature of the recommendation made by Security Review, the local CIC may or may not conduct a further interview with the Applicant before rendering its decision on the latter's Application for permanent residence in Canada. |
[13] I cannot agree with the submission of the Applicant that the Respondent has shown negligence in the processing of the Applicant's application for permanent residence.
[14] It must not be forgotten that there exists special circumstances as to why extra time may have had to be taken to determine security issues relating to the Applicant (see Exhibit 10 to Applicant's affidavit).
[15] A case almost identical with the case at bar is that of Surjit Singh v. The Minister of Citizenship and Immigration, Imm-3005-97 (F.C.T.D.) where, Mr. Justice Pinard states:
| "...... |
It would appear to me that the applicant's application is being duly processed, given that although his application for permanent residence was filed in June, 1995, it has only been eight months since Security Review received the CSIS report. In my opinion, this does not place the Minister's actions outside of the timeframe in subsection 46.04(6) of the Act, which imposes a duty to decide on the application "as soon as possible". It seems to me that the delay in this instance is merely a systemic one, and there is no evidence of unreasonable delay. I would thus follow Justice Muldoon's reasoning in Carrion v. Canada (M.E.I.), [1989] 2 F.C. 584 (F.C.T.D.), wherein he held that systemic delays cannot be attributed to the respondent Minister. Again, as Justice Muldoon states at page 589:
| The Court cannot find,as the applicant's counsel urges, that the Minister is delaying or declining to perform any legal duty. It is trite law that such a finding is a prerequisite for mandamus. [...] |
| Consequently, the application for judicial review is dismissed. However, the applicant may re-apply for leave to commence an application for judicial review seeking similar relief after February 6, 1999, which is one month after the expiration of the ten-month delay referred to by Sheila Bleiwas Oakes in paragraph 13 of her affidavit." |
[16] In the case at bar CSIS conducted two interviews with the Applicant, on November 27, 1996 and November 28, 1996.
[17] It would appear to me that the Applicant's application is being processed within a reasonable timeframe. It may appear to be a slow process for the Applicant because of his health problems and because his wife and children are in Pakistan but Ms. Weil states the decision should be made within 8 to 10 months from September 1, 1998, I cannot say that this further delay is outside the timeframe of subsection 46.04(6) of the Act.
[18] The application for judicial review is dismissed. The Applicant may re-apply for leave to commence an application for judicial review seeking similar relief after July 1, 1999.
[19] I strongly urge the Respondent to make the decision on an urgent basis because of the Applicant's health problems as evidenced by Exhibit 9 to the Applicant's affidavit.
Max M. Teitelbaum
Judge
MONTREAL, QUEBEC
October 28, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19981028
Docket: IMM-636-98
BETWEEN:
GHULAM QADIR CHAUDHRY
Applicant
AND:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
TRIAL DIVISION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-636-98
STYLE OF CAUSE: GHULAM QADIR CHAUDHRY
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: Montreal (Quebec)
DATE OF HEARING: October 27, 1998
REASONS FOR JUDGMENT OF TEITELBAUM, J.
DATED: October 28, 1998
APPEARANCES:
Me Gilles Lespérance for the Applicant
Me Michel Synnott for the Respondent
SOLICITORS OF RECORD:
Me Gilles Lespérance
Montreal, Quebec for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
c/o Department of Justice Canada
Montreal, Quebec for the Respondent