Ottawa, Ontario, September 16, 2005
PRESENT: THE HONOURABLE MR. JUSTICESHORE
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] "The scope of the duty of fairness subject to review does not extend to review of the legitimate exercise of discretion vested in an administrator to establish procedures to meet the objectives of the statutes and regulations he or she administers."[1]
JUDICIAL PROCEDURE
[2] This is an application for judicial review seeking a writ of mandamus to direct the Minister of Citizenship and Immigration (Minister) to process the Applicant's application for permanent residence as a Convention refugee.
BACKGROUND
[3] The Applicant, Mr. Varinder Pal Singh Bhatia, a citizen of India, arrived in Canadaon April 17, 1993.
[4] On November 8, 1994[2] the Refugee Protection Division of the Immigration and Refugee Board (Board) determined that Mr. Bhatia is a refugee.
[5] Mr. Bhatia submitted an in-Canada application for permanent residence as a Convention refugee dated November 18, 1994,[3] which was approved in principle (i.e. subject to medical, criminal and security checks) on December 14, 1994.[4]The processing of this application for permanent residence ceased on April 27, 1998[5] as the Minister had begun an investigation that led to an application to the Board, on October 19, 1999, to reconsider and vacate Mr. Bhatia's
Convention refugee status. The hearing before the Board took place on November 21, 2000 and on May 7, 2001.[6] The Board vacated Mr. Bhatia's Convention refugee status on September 25, 2001.[7] Judicial review of this decision was granted by this Court on November 25, 2002 and the matter was remitted to the Board for reconsideration. By notice dated September 19, 2003, the Minister withdrew its application to further reconsider and vacate Mr. Bhatia's Convention refugee status.
[6] Since then, Mr. Bhatia has written to the Minister asking when a decision would be made concerning his application for permanent residence. To date, he has not received any response.
[7] Mr. Bhatia filed an application for leave and for judicial review on November 3, 2004, requesting a mandamus order.
[8] On February 8, 2005, the Minister's representative wrote Mr. Bhatia, requesting an updated application for permanent residence, fingerprints and passport size photographs in order to facilitate the Royal Canadian Mounted Police (RCMP) clearance. On March 16, 2005, Citizenship and Immigration Canada received Mr. Bhatia's updated application, fingerprints and photographs.
[9] On February 14, 2005, Mr. Bhatia's medical clearance was extended until December 9, 2005.
[10] On June 7, 2005, the RCMP provided criminal clearance for Mr. Bhatia.[8]
[11] His security clearance from the Canadian Security Intelligence Service, which was requested on an urgent basis in February 2005, remains outstanding. Mr. Bhatia is the subject of a tip, an unsigned letter received by Citizenship and Immigration Canada's Case Processing Centre in Vegreville, Alberta on June 9, 2004. The Minister states that the letter is currently under investigation.[9]
ISSUE
[12] Is issuance of a writ of mandamus directing the Minister of Citizenship and Immigration to process Mr. Bhatia's permanent residence application justified with respect to the allegation of unreasonable delay?
ANALYSIS
[13] Issuance of a writ of mandamus, which is an equitable remedy, is subject to the following conditions:
1. there must be a public legal duty to act under the circumstances;
2. the duty must be owed to the applicant;
3. there must be a clear right to performance of that duty, in particular
(a) the applicant must have satisfied all conditions precedent giving rise to the duty;
(b) 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;
4. no other adequate remedy is available to the applicant;
5. the order sought must have some practical effect;
6. on a balance of convenience, an order of mandamus should issue[10].
[14] The main issue in this case is whether the third condition is satisfied, and more specifically whether there is an unreasonable delay.
1. There must be a public legal duty to act under the circumstances
[15] The legal duty to determine an application for permanent residence is provided in subsection 21(2) of the Immigration and Refugee Protection Act[11]:
The requirements of the legislation, as set out, are not subject to any temporal or pragmatic parameters. No time limits are given with respect to the underlined phrase above. What is
reasonable and what is unreasonable varies as each instance is a case unto itself! The above legislation provides for the legitimate exercise of discretion.
2. the duty must be owed to the applicant
[16] Mr. Bhatia did submit an application for permanent residence in 1994. The Minister therefore has a duty to determine the application.
3. there must be a clear right to performance of that duty
[17] First, Mr. Bhatia must have satisfied all conditions precedent giving rise to the Minister's duty to determine his application for permanent residence. Mr. Bhatia has indeed satisfied all these conditions as he duly submitted his application and provided all required information and documents requested of him. Mr. Bhatia has not failed to comply with any request.
[18] Second, there must have been a prior demand for performance of the duty, a reasonable time to comply with the request to process the application and a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay. For a delay in the performance of a statutory obligation to be considered unreasonable, the following requirements must be met:
(1) the delay in question has been longer than the nature of the process required, prima facie;
(2) the applicant and his counsel are not responsible for the delay; and
(3) the authority responsible for the delay has not provided satisfactory justification[12].
[19] In the case at bar, though the application for permanent residence was submitted in 1994, the Court can only take into account the period starting on September 19, 2003, when the Minister withdrew the application to further reconsider and vacate Mr. Bhatia's Convention refugee status. This represents a period of less than two years.
[20] The period between the end of 1994 and September 19, 2003 does not represent an undue delay as it encompassed the processing of the application for permanent residence starting in December 1994, an investigation by the Minister as a result of a poison pen letter received by the High Commission in New Delhi on May 15, 1996,[13] an interview of Mr. Bhatia's wife on February 24, 1997[14] which raised suspicion concerning the veracity of the facts on which his 1994 positive refugee decision was based, an application by the Minister on October 19, 1999 to vacate Mr. Bhatia's Convention refugee status, the vacation of his refugee status by the Immigration and Refugee Board on September 25, 2001[15], a judicial review which remitted the matter back for reconsideration on November 25, 2002,[16] and finally the Minister's withdrawal of its application to vacate Mr. Bhatia's status on September 19, 2003. Though frustrating for Mr. Bhatia especially considering the outcome of the vacation procedures, the time period between the end of 1994 and September 19, 2003 results from legitimate processes.
[21] As for the period after September 19, 2003, there is no evidence on the record that would indicate that Mr. Bhatia or his counsel are responsible for the delay between September 19, 2003 and now.
[22] The Minister provided reasonable justification for part of the delay, i.e. from February 2005 until now. On February 14, 2005, Mr. Bhatia's medical clearance was extended until December 9, 2005. On June 7, 2005, the RCMP provided criminal clearance for Mr. Bhatia. His security clearance from the Canadian Security Intelligence Service, which was requested on an urgent basis in February 2005, remains outstanding. Mr. Bhatia is the subject of a tip, an unsigned letter received by Citizenship and Immigration Canada's Case Processing Centre in Vegreville, Alberta on June 9, 2004. The Minister states that the letter is currently under investigation. The period between September 19, 2003 and February 2005 remains unaccounted for by the Minister. This represents a delay of approximately one year and a half. In light of all circumstances as described by both parties in respect of the immigration procedures, the Court cannot find that this delay has been unreasonable.[17]
[23] Having found that Mr. Bhatia has failed to satisfy the Court that the delay in the performance of the statutory duty to determine the application for permanent residence has been unreasonable, it is unnecessary to consider the remaining conditions for the granting of a mandamus order.
CONCLUSION
[24] For these reasons, the Court answers the question at issue in the negative. Consequently, the application for judicial review is dismissed.
ORDER
THIS COURT ORDERS
1. The application for judicial review be dismissed.
2. No question be certified.
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9215-04
STYLE OF CAUSE: VARINDER PAL SINGH BHATIA
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: September 8 2005
AND ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
Mr. Leigh Salsberg FOR THE APPLICANT
Ms. Matina Karvellas FOR THE RESPONDENT
SOLICITORS OF RECORD:
WALDMAN & ASSOCIATES FOR THE APPLICANT
Toronto, Ontario
JOHN H. SIMS Q.C. FOR THE RESPONDENT
Deputy Minister of Justice and
Deputy Attorney General
[1] Choi v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 857; (1990), 37 F.T.R. 297 at p. 307; underlined emphasis of the undersigned.
[2]T record, p. 177,
[3]T record , pp. 232 and 237.
[4]T record, pp. 225 and 151.
[5]T record, p. 29.
[6] T record, pp. 102-103.
[7] T record, p. 103; It is to be recalled that Mr. Bhatia submitted a Humanitarian or Compassionate (H & C) application on December 19, 2001 to ask for landing from within Canada. Though both parties referred to the H & C application, it is not discussed in these reasons as it is not directly relevant to the mandamus issues in the case.
[8]1. An anonymous phone call was received by immigration authorities on April 17, 1993. The tip stated that Mr. Bathia had murdered his girlfriend in India and was involved in drug trafficking (T record, p. 140). That tip led to the preventive detention of Mr. Bathia before his refugee determination (T record, pp. 317, 357).
2. An unsigned letter received by the High Commission in New Delhi on May 15, 1996 (T record, p. 241).
3. An unsigned letter that was received by CIC's Case Processing Centre in Vegreville, Alberta on June 9, 2004 - the letter alleges that Mr. and Ms. Bhatia are involved in criminal and terrorist activities, etc. (T record, pp. 17-18). This letter is currently under investigation (affidavit of Denise Larson, paragraph 16).
[9] Mr. Bhatia has also stated in his submissions that he cannot sponsor his wife, yet, the facts are clear, his family members, his wife and two children were granted permanent resident status. They were landed at Lester B. Pearson Airport, March 7, 2004 as dependents of a Convention Refugee, eight months before Mr. Bhatia even applied.
[10] Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.); Khalil v. Canada (Secretary of State) (C.A.), [1999] 4 F.C. 661 (C.A.); Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33 (T.D.).
[11] S.C. 2001, c. 27; also Choi, supra.
[12] See for example Conille, supra and Mohamed v. Canada(Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 90 (F.C.T.D.).
[13] T record, p. 241.
[14] T record, p. 70.
[15] T record, p. 69.
[16] T record, pp. 68-69.
[17] Choi, supra.