Federal Court Decisions

     Date: 20000426

     Docket: IMM-2375-99

Between :

     SURINDER SINGH, currently residing at

     1511-26 Hanover Rd, Brampton, Ontario, L6S 4T2,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION, c/o Justice Department,

     Guy Favreau Complex, 200 West René-Lévesque, East Tower,

     5th Floor, Montreal, Quebec, H2Z 1X4,

     Respondent

     REASONS FOR ORDER

PINARD, J. :

[1]      The applicant seeks an order of mandamus ordering the respondent to provide an answer to his application for permanent residence in Canada filed on or about August 27, 1995.

[2]      By letter dated October 28, 1998, Citizenship and Immigration Canada (CIC) informed the applicant that:

This refers to your application for permanent residence. Although you were eligible to apply as a Convention refugee, further processing of your application is being suspended, because you have not submitted documentation meeting the requirements of subsection 46.04(8) of the Immigration Act. Enclosed, please find the driver's licence and the school document, you submitted, unfortunately these documents do not meet immigration purposes for identification as they do not prove that you are a citizen of India.

[. . .]

If, at some time in the future, you obtain further documentation regarding your identity, you may send a copy to this office for consideration.

[3]      The following provisions of the Immigration Act, R.S.C. 1985, c. I-2, (the Act) are particularly relevant:

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      (a) a permanent resident;      (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;      (c) a national or citizen of a country, other than the country that the person left, or outside of which the person remains, by reasons of fear of persecution; or      (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. [. . .] (6) An immigration officer to whom an application is made under subsection (1) shall render the decision on the application as soon as possible and shall send a written notice of the decision to the applicant. [. . .] (8) An immigration officer shall not grant landing either to an applicant under subsection (1) or to any dependant of the applicant until the applicant is in possession of a valid and subsisting passport or travel document or a satisfactory identity document.

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) elle est un résident permanent;      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) 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) 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. [. . .] (6) L'agent d'immigration rend sa décision le plus tôt possible et en avise par écrit l'intéressé. [. . .] (8) Tant que l'intéressé n'est pas en possession d'un passeport ou d'un document de voyage en cours de validité ou de papiers d'identité acceptables, l'agent d'immigration est tenu de lui refuser, ainsi qu'aux personnes à sa charge, le droit d'établissement.

[4]      The requested writ of mandamus is denied on the ground that the applicant has not satisfied all conditions precedent giving rise to the respondent's public legal duty to act (see Apotex Inc. v. Canada, [1994] 1 F.C. 742, aff'd [1994] 3 S.C.R. 1100). The applicant was given several indications that his application for permanent residence was incomplete. The first letter from CIC, dated September 21, 1995, indicated that a passport, travel document, national identity card, birth certificate or other identity document was necessary for his application to be processed. This letter also informed the applicant:

If you do not currently possess an identity document, you must make every attempt to obtain one. If, after ninety days from the date of this letter you do not have an identity document, please write to this office and explain what efforts you have taken to try and obtain an identity document.

[5]      The applicant complied with neither of these options. That is, he neither sent an identity document such as a passport, travel document, national identity card or birth certificate, nor wrote to CIC explaining the efforts he had taken to obtain an identity document. Instead, he concluded that he had already provided the required identity documents. In my opinion, this was an unreasonable conclusion given that the letter from CIC specifically stated that the identity documents he had provided were insufficient.

[6]      Approximately one year later, on September 9, 1996, CIC again wrote to the applicant of his failure to provide "[s]atisfactory identification in the form of an original passport or travel document". On November 25, 1996, the applicant indicated to CIC that he was not able to obtain any identification.

[7]      Finally, on October 28, 1998, CIC informed the applicant that further processing of his application for permanent residence was suspended because of his failure to provide documentation meeting the requirements of subsection 46.04(8) of the Act.

[8]      Subsequently, the applicant states that he obtained his birth certificate and a translation from India. He claims to have sent the originals of these documents to CIC. However, CIC states that it has not received these documents.

[9]      The onus was on the applicant to ensure and to establish that his application was complete. He was given several clear warnings that satisfactory identification documents were needed. In my opinion, these warnings satisfied the duty of fairness owed to the applicant at the application stage.

[10]      With respect to the other points raised by the applicant, I am of the opinion that they are without merit. First of all, there is nothing in the record indicating that the delay in processing his application for permanent residence has anything to do with CSIS or security concerns.

[11]      Second, Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315, is of no assistance to the applicant. That case can be distinguished from the case at bar because Mr. Justice Strayer found that there had been a long delay (4" years) in the making of the decision on an application for permanent residence and that no adequate explanation had been given for this delay. In contrast, the respondent here has provided a precise and satisfactory explanation for the delay.

[12]      Consequently, the application for judicial review is dismissed.

                            

                                     JUDGE

OTTAWA, ONTARIO

April 26, 2000