OTTAWA, Ontario, this 22nd day of December, 2005
PRESENT: THE HONOURABLE PAUL U.C. ROULEAU
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for leave and judicial review under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act"). The matter is concerned with the delay in reaching a decision on the applicant's request for Canadian citizenship. The applicant seeks a writ of mandamus directing the respondent to process his application for Citizenship and to provide written notice of its decision within thirty days of any Order of this Court.
[2] The applicant, Shahram Golestaney, is a citizen of Iran and a permanent resident of Canada. He was landed in March 1989 and applied for citizenship in September 2000. No decision had been made on the applicant's request for citizenship as of the date of this judicial review. Upon receipt of an application for citizenship it is first reviewed to ensure that the minimum requirements are met. Thereafter an applicant must undergo immigration, criminal and security clearances. In this particular case the only outstanding item is the security clearance.
[3] In 1992, the applicant was convicted in relation to an attack on the Iranian Embassy in Ottawa, which was orchestrated by the Mujahedin-3-Khalq ("MEK"). In 1994, at Ottawa, Ontario, he was convicted of break and enter under subsection 348(1) of the Criminal Code and of an attack on internationally protected premises under section 431 of the Criminal Code. He was given a suspended sentence and probation for two years, plus community services of 300 hours. The sentence has been served and his criminal status along with his immigration status were cleared in 2001.
[4] After the process of the application to determine his eligibility for citizenship, in February 2001, the applicant was required to provide a copy of his fingerprints. Upon receipt, Citizenship authorities sent the information to the RCMP for consideration.
[5] In August 2001, Citizenship Canada made inquiries with respect to security clearance pending the applicant's citizenship application.
[6] In December 2001, Citizenship Canada made a further inquiry seeking an update. The reply was that the applicant was still under review. A further inquiry issued from Citizenship Canada in March 2002 and the reply received was "still under study".
[7] In a memorandum to Citizenship authorities, CSIS advised in January 2002 that after an interview the applicant acknowledged his involvement in the MEK demonstrations in Canada, the United States and Italy.
[8] In June 2002, Citizenship Canada directed a further inquiry and the response was to the effect that Security was working on the case - "subject still under review".
[9] In September 2002, there was a further confirmation to Citizenship authorities from the Canadian Security Intelligence Service ("CSIS") that they were working on the case - "brief to be coming". This was later confirmed in January 2003.
[10] In a memorandum dated January 2003, Immigration Canada received a request from Citizenship authorities to please advise if any action was to be taken by the office of IRPA. This was followed by a memorandum in November 2003 requesting an update on the applicant's status. The reply was to the effect that they had been advised that there were "still security concerns and, based on that information, they have consulted with the Immigration Security Review and await a response. ... cannot continue until complete clearances finalized".
[11] In a further memorandum in March 2004, Citizenship Canada was still seeking a reply and direction if they could continue the citizenship process. A similar request was sent in May 2004 to Security Review asking if further developments were available. In September 2004, Citizenship authorities were once again advised that the application was currently on hold pending a consultation conducted with Immigration Security Review. The consultation was based on information received from CSIS as of January 2003. Citizenship authorities confirmed that they could not continue the process without complete clearances.
[12] There is no doubt that early on in these proceedings the applicant received clearances from both criminal and immigration authorities but citizenship still lacked security clearance. There is also no doubt that the applicant has been interviewed on numerous occasions by CSIS and is still seeking some confirmation or reply to citizenship authorities with respect to his status. Furthermore, this is still under review by CSIS and, as a result, the Citizenship security clearance has not been granted.
[13] It is suggested that the delay is the responsibility of Citizenship authorities since they have undertaken the process and are responsible for pursing the issuance of citizenship to its completion.
[14] The applicant further advances that no decision has been made by the respondent with respect to the applicant's request for citizenship and seeks a writ of mandamus directing the respondent to process the applicant's application for citizenship and to provide written notice within 30 days of any Order of this Court.
[15] To suggest that Citizenship Canada is not pursuing this matter with diligence is not supported by the facts. On at least ten occasions the documents reveal that there were many inquiries by Citizenship and Immigration Canada with security authorities seeking an update on the applicant's status.
[16] Counsel then suggests to the Court that his client was entitled to an answer from Citizenship which he has not yet received. The answer he is seeking is that citizenship has been granted or denied because of security reasons. I am satisfied that inquiries made by both the applicant and his counsel have been answered; they have been told by Citizenship and Immigration Canada that they were still awaiting security clearance.
[17] Turning to the issue of mandamus, several principle requirements must be satisfied before mandamus will issue. In Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (F.C.A.); aff'd [1994] 3 S.C.R. 1100 (S.C.C.), the Federal Court of Appeal held that in order to obtain the remedy of mandamus, an applicant must establish that:
1. there is a public legal duty to act;
2. the duty is owed to the applicant;
3. there is a clear right to the performance of that duty, in particular
(a) that the applicant has satisfied all conditions precedent giving rise to the duty;
(b) that there was a prior demand for performance of the duty, a reasonable time to comply with the demand, and a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay and,
4. there is no other adequate remedy.
[18] Pursuant to section 14 of the Citizenship Act, before an application for a grant of citizenship can be considered by a citizenship judge within 60 days of referral to her or him, the Registrar must be satisfied that the applicant meets the requirements of the Act and Regulations. Section 11 of the Regulations provides that when a citizenship application is filed, the Registrar is responsible for causing the inquiries necessary for the application of the Act to be commenced. Subsection 11(1) reads as follows:
| 11.(1) On receipt of an application made in accordance with subsection 3(1), 6(1), 7(1) or 8(1), the Registrar shall cause to be commenced the inquiries necessary to determine whether the person in respect of whom the application is made meets the requirements of the Act and these Regulations with respect to the application. |
11.(1) [...] fait entreprendre les enquêtes nécessaires pour déterminer si la personne faisant l'objet de la demande remplit les exigences applicables de la Loi et du présent règlement. |
[19] The requirement of subsection 11(1) of the Regulations require that the Registrar make inquiries to determine whether the applicant meets the requirements of the Act and Regulations. The only public duty that stems from subsection 11(1) is to make inquiries of CSIS and CBSA. This inquiry is separate and apart from the public duty that must be performed by CSIS under the CSIS Act or under the Immirgation and Refugee Protectiona Act. The provisions of the Act and Regulations preclude a Citizenship Officer or the Registrar from processing the application any further until the necessary inquiry results have been received from CSIS and Immigration Security Review. In the case at bar, the security clearances have not been provided. Consequently, an order for mandamus can not issue since there is no public duty on the Citizenship Officer until all of the requirements of the Act and Regulations have been satisfied. The only public duty on a Citizenship Officer under subsection 11(1) of the Regulations is to make inquiries of CSIS and to follow up on a periodic basis, a duty which has been clearly satisfied in this case.
[20] In making his argument, the applicant relies on the decision of this Court in Conille v. Canada(Minister of Citizenship and Immigration), [1999] 2 F.C. 33, wherein the Court stated as follows:
It is too easy to argue, as does the respondent, that the Registrar has no legal obligation to act as long as the inquiries have not been completed. By that reckoning, an investigation could go on indefinitely and the Registrar would never have a duty to act. The difficulty lies essentially in the fact hat there is no time limit provided in the regulations for completing these inquiries. In fact, the source of the problem is a defective statutory framework. For one thing, the powers of the Registrar to direct that an investigation be conducted in order to ascertain that the requirements of the Act have been met are not subject to any temporal or pragmatic parameters, apart from the obligation to await completion of the inquiries provided for in section 11 of the Regulations, and, for another, no time limits are placed on the powers of the investigators, in this instance CSIS. Given these circumstances, the processing time may extend well beyond the time required for conducting the investigation. At what point can that time be regarded as unreasonable?
[21] Subsequently, a number of Federal Court decisions followed the reasoning in Conille and have held that an application for citizenship can not be indefinitely suspended by a Citizenship Officer on the grounds that the matter is still under investigation by CSIS or CBSA. These decisions generally provide that in instances where there is unreasonable delay, a Citizenship Officer must advise the applicant that an investigation is on-going, which is delaying a decision on the application.
[22] With due respect, I agree with the respondent that these decisions are not correct. The Registrar can not exercise his public duty under the Citizenship Act until such time as he has received the required security clearances. His public duty is restricted to making inquiries, which, in the present case, he has done. If the object of the delay is CSIS or the CBSA, as was the case in Conille and as appears to be the case here, then the request for mandamus should be directed to CSIS or the CBSA and not CIC. An order for mandamus as against CIC for matters that are within the jurisdiction of CSIS or CBSA is to confound the very object of the request for mandamus.
[23] Contrary to what was suggested in Conille, a Citizenship Officer is not empowered by the Act or the Regulations to advise CSIS or the CBSA that the investigation "is concluded unless advised otherwise". There is no such provision in the Act or Regulations allowing a Citizenship Officer to make such a conclusion of fact. This is left to CSIS or the CBSA and to the powers that Parliament has given to them under their respective Acts. To allow a Citizenship Officer to make such a determination of fact would be to usurp the CSIS Act or the Immigration and Refugee Protection Act.
[24] An applicant either satisfies the requirements of the Act and Regulations or he does not. If he satisfies the legislation, then a writ of mandamus may be sought compelling the Registrar to perform his public duty. To suggest that an applicant is entitled to mandamus in instances where he has only partially satisfied the requirements of the Act and Regulations is not good law insofar as it creates a public duty where none exists. To fashion a public duty on the Registrar for delays caused by CSIS or the Immigration Security Review, which operate under separate statutes, and to issue mandamus on these grounds is clearly wrong in law. It may be true that the legislative framework involved here is defective because it fails to provide for any time limits. However, that is a defect which only Parliament can remedy. It is certainly not one which the Court is empowered to remedy by imposing an arbitrary time limit on the Registrar's performance of his public duty.
[25] Having reviewed the jurisprudence, I am satisfied that the correct statement of law is contained in the decision of Lee v. Canada(Secretary of State), [1987] F.C.J. No. 1130. That case also involved an application for an order in the nature of mandamus directing the Registrar of Citizenship to process the applicant's application for citizenship, again the delay being the result of a lack of security clearance from CSIS. In denying the application for mandamus, Jerome A.C.J. came to the following conclusion:
On the basis of that information, the Registrar is not in a position to determine whether the applicant meets the requirements for the grant of citizenship specified in s. 5. On the contrary, while the CSIS investigation is ongoing, preliminary indications are that the applicant may be ineligible for citizenship. It would appear, therefore, that the respondent is acting precisely in conformity with her statutory obligation. The Registrar of Citizenship has not determined whether the applicant meets the requirements of the Act and is therefore under no statutory duty to refer the citizenship application to a citizenship judge. Indeed, in the face of existing information, it is difficult to see how the Registrar could permit the matter to get before a citizenship judge without offending the sections of the Act to which I referred above.
Finally, mandamus is a discretionary form of relief and should issue to compel performance of a statutory duty, but also should be confined to cases where no other more suitable remedy is available. In that regard, I have already concluded that the actions of the present respondent are consistent with her statutory obligations. The applicant's grievance therefore may be with CSIS, a grievance which is of course not before me in the present context.
[26] I find that reasoning equally applicable to the case now before me.
ORDER
[27] For all of the above reasons, the application for a writ of mandamus is dismissed.
DEPUTY JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T- 1889-04
STYLE OF CAUSE: SHAHRAM GOLESTANEH v.
THE MINISTER OF CITIZENSHIP AND IMMIGATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: DECEMBER 12th, 2005
REASONS FOR ORDER: THE HONOURABLE MR.JUSTICE ROULEAU
APPEARANCES:
Mr. Warren L. Creates FOR THE APPLICANT
Mr. Alexander Gay FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Warren L. Creates
Perley-Robertson, Hill & McDougall LLP
Ottawa, Ontario FOR THE APPLICANT
Mr. John H. Sims,Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT