BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] These are the reasons for the Court's Order of February 17, 2005, denying the Respondent Minister's request, yet again, for a delay in deciding the Applicant's application for landing, an application which is at least four (4) years old. The Respondent's excuses for inaction are not acceptable.
[2] The Applicant Warach filed an application for permanent residence more than four years ago and thereafter his application was processed with glacial speed.
[3] Despite the Applicant filing all the evidence required, it was necessary for him to seek mandamus requiring the Minister to act on his landing application. Justice Pinard granted the mandamus Order on May 27, 2004 and ordered the Minister to make the decision within six (6) months, subject to the right to file a motion for an extension of time with evidence justifying such a request.
[4] The delay in this case all seems to stem from the failure of the Minister to obtain advice from INTERPOL/Pakistani authorities regarding the Applicant's criminality status. While some contact with INTERPOL was made following Justice Pinard's Order, there was precious little real action on the file despite the deadline set by Justice Pinard. It was not until 17 days before the expiry of Justice Pinard's deadline that the Respondent informed INTERPOL of the looming Court ordered deadline.
[5] On November 15, 2004, the Respondent filed a motion in writing requesting a further six (6) month extension on the basis that officials had not heard back from INTERPOL. There is no evidence that the Respondent felt any particular pressure to comply with Justice Pinard's mandamus Order. In fact, the matter did not come before the Court until the deadline had passed. No effort was made to expedite the request or to deal with the matter in advance of the expiry of the deadline.
[6] On December 7, 2004, I extended the mandamus for approximately six (6) weeks to January 24, 2005 and directed that both INTERPOL and Pakistani authorities be informed of the Court ordered deadline of January 24, 2005.
[7] The day after the expiry of that new deadline, the Respondent filed another request for an extension so that the Minister would not have to decide the matter until one month after receipt of the criminal and security checks. The reason for now raising the issue of security checks is that by virtue of the Respondent's delays, the CSIS clearance had expired. Paranthetically, it should be noted that the earlier delays caused the Applicant's medical clearance to expire.
[8] After the Order of December 7, 2004, granting the extension to January 24, 2005, the Respondent advised INTERPOL Ottawa (the RCMP) of the deadline and then did nothing for six weeks until the very date set by the Court for the Respondent to comply with the mandamus Order.
[9] As the Respondent reviewed the file, it was determined that the CSIS clearance had also lapsed. CSIS appears to be singularly uncooperative with respect to reinstating or updating the clearance. If necessary, the Court would not hesitate to make the necessary orders to address this issue.
[10] It also transpires that the Department of Foreign Affairs and International Trade took approximately one month to convey the message of a pressing deadline to their Pakistani counterparts.
[11] In my view, the Respondent and others have shown an unacceptable level of prevarication or equivocation. The law required the Respondent to comply with both the letter and spirit of Justice Pinard's Order and to show due diligence in attempting to comply with the Court's deadline. This has not been done. It is no answer to engage in bureaucratic exchanges with INTERPOL and not exhibit a sense of urgency. Given today's communication facilities there is no reason why communications to a foreign government should take a month - not if there had been a real interest in not only conveying the information but having it acted upon.
[12] The Respondent's responsibilities include not only dealing with criminal and security clearances but also in carrying out its duty to render a decision in a reasonable time. If the Government of Canada has been unable to secure working mechanisms with international policy agencies or foreign governments sufficient to meet its legal obligations under Canadian law, that is not the responsibility of the Applicant.
[13] Just as delays in removing persons from Canada who have no status to be here brings the efficacy of the immigration system into question, so does delay in deciding who should be admitted.
[14] The Court has given more extensive reasons than a motion of this nature usually requires so that there is a clear record for officials and for the Court (if it has to deal with this matter for some reason) as to why this motion was denied. The Court expects the Respondent to now comply with Justice Pinard's Order and make the necessary decision, one way or the other.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3754-03
STYLE OF CAUSE: HARBHAJAN SINGH WARACH
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: February 17, 2005
APPEARANCES:
| Brena Parnes
|
|
| John Loncar
|
SOLICITORS OF RECORD:
| Waldman and Associates Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
|