Date: 20050603
Docket: IMM-4953-04
Citation: 2005 FC 803
BETWEEN:
ABDULHAKIM HAMALIPOOR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] The Applicant has brought an application pursuant to paragraph 18.1(3)(a) of the Federal Court Act for an order requiring the Minister to complete the processing of Mr. Hamalipoor's application for permanent residence in Canada, which was filed in October, 2000.
[2] At the hearing of this judicial review, the Respondent sought to have the matter adjourned to allow it to review documents which it claimed had been "rediscovered". The effect of such an adjournment would be further delays, of which there is more than sufficient instances. On the basis of the evidence filed, the Court was not satisfied that this newly discovered material was sufficient cogent evidence to justify an adjournment. It was too speculative at this stage to support any further delay. Therefore that motion was dismissed.
PRINCIPAL FACTS
[3] Mr. Hamalipoor is a national of Iran who obtained refugee status in September, 2000. In November, 2000 he applied for permanent resident status for himself and for his wife and children who have been living in Pakistan without legal status.
[4] By February 1, 2001 the Case Processing Centre acknowledged receipt of his permanent resident application and by letter set out the generic documents which were to be filed.
[5] Of considerable importance to this case is the fact that in March, 2001, Mr. Hamalipoor's CSIS check was complete. That check was valid for 18 months.
[6] In a letter dated November 19, 2001, the Applicant was told that in order to process his application, he had to submit a certified translation of his identity card. Apparently the translation submitted was not certified as required by the February 1, 2001 acknowledgement letter from the Respondent. It took the Respondent 9½ months to advise the Applicant of this deficiency in his application. The required certified translation was filed within weeks.
[7] Having closed out the year 2001 with all documents filed and a valid CSIS clearance, it was not until March, 2004, and only after repeated requests by his counsel, that the Applicant was informed that the Respondent was awaiting an updated CSIS clearance - the previous one having lapsed through the passage of time.
[8] In the interim, between the 2001 permanent resident application filing and the advice that the Respondent was waiting for CSIS, the Applicant's son died while waiting in Pakistan.
[9] The Applicant has waited 4½ years to get to this stage. He has not seen his family during this period and they live in difficult and dangerous conditions in Pakistan.
[10] In February, 2005 the Applicant was interviewed by CSIS and still there is no indication of when CSIS will report on the Applicant.
[11] Based on a chronology of events prepared by the Respondent, it argues that there was continuing processing of the application The reality is - that the entries are replete with references to file review, and awaiting one thing or another - but with little or nothing substantive happening to advance the decision on the permanent resident application.
ANALYSIS
[12] The sole issue is whether the Applicant is entitled to an order of mandamus requiring the Respondent to make a decision because of the excessive delay related to his permanent resident application.
[13] The Respondent is under a lawful duty pursuant to IRPA section 21(2) to process an application for permanent resident status and to make a decision. The provision reads:
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21(2) Except in the case of a person described in subsection 112(3) or a person who is a member of a prescribed class of persons, a person whose application for protection has been finally determined by the Board to be a Convention refugee or to be a person in need of protection, or a person whose application for protection has been allowed by the Minister, becomes, subject to any federal-provincial agreement referred to in subsection 9(1), a permanent resident if the officer is satisfied that they have made their application in accordance with the regulations and that they are not inadmissible on any ground referred to in section 34 or 35, subsection 36(1) or section 37 or 38. |
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21(2) Sous réserve d'un accord fédéro-provincial visé au paragraphe 9(1), devient résident permanent la personne à laquelle la qualité de réfugié ou celle de personne à protéger a été reconnue en dernier ressort par la Commission ou celle dont la demande a été acceptée par le ministre - sauf dans le cas d'une personne visée au paragraphe 112(3) ou qui fait partie d'une catégorie réglementaire - dont l'agent constate qu'elle a présenté sa demande en conformité avec les règlements et qu'elle n'est pas interdite de territoire pour l'un des motifs visés aux articles 34 ou 35, au paragraphe 36(1) ou aux articles 37 ou 38.
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[14] The former Immigration Act's comparable provision, section 46.04(6) required that the immigration officer "shall render the decision on the application as soon as possible". While these words do not appear in the new legislation, the obligation to decide "without unreasonable delay" has been upheld by the Federal Court of Appeal in Khalil v. Canada (Secretary of State), [1999] 4 F.C. 661 (C.A.).
[15] The Respondent contends that given the importance of security concerns, a three year delay in updating a CSIS clearance is not unreasonable.
[16] In Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33 (T.D.) Justice Tremblay-Lamer set out three considerations in determining whether a delay is unreasonable.
1) the delay in question has been longer than the nature of the process required, prima facie;
2) neither the applicant or his/her counsel is responsible for the delay;
3) the authority responsible for the delay has not provided satisfactory justification.
[17] As early as February, 2001, in the letter acknowledging receipt of his application, the Respondent gave an estimate of 18 months from completion of the Applicant's (and his family's) filing requirements. This period, while only an estimate, gives some time indication of the nature of the process. The Respondent has provided no evidence to rebut this prima facie evidence of the time requirement which the nature of the process would require.
[18] The Respondent contends that the Applicant was responsible for 11 months of the delay due to his failure to file a certified translation of his identity documents - rather than the merely translated version. That delay is in part attributable to the Respondent's delay in advising the Applicant of the deficiency. At best the responsibility is shared, but even if all the responsibility was attributed to the Applicant, it does not justify a 4½ year period of time to this point - with no indication when the ultimate decision will be made.
[19] The Respondent says that it has a satisfactory justification for the delay - it is awaiting the CSIS update. However a review of the file shows that there was a considerable amount of bouncing the file or parts of it between various parts of the Respondent's organization as well as between it and other government agencies.
[20] This internal scurrying about with no actual progress is not a satisfactory justification for delay.
[21] Furthermore it is not adequate to pass the buck and avoid responsibility by blaming delays on another government organization. An applicant's right to a decision is an obligation on the Government of Canada acting through the responsible minister. It is the Respondent's obligation to cause the necessary steps within government so that the rights under the statute are fulfilled.
[22] In this instance, what is at the core of the problem is obtaining an update of the CSIS clearance. It is important to bear in mind that the Applicant passed his CSIS check and that it lapsed because of inaction by the Respondent.
[23] At the conclusion of the oral argument, Respondent's counsel was directed to obtain instructions as to when a decision could be made. Counsel has advised the Court that 6 months is a reasonable time. However this advice was replete with caveats, loopholes, references to the CIC Manual (as if it was the law of this land) and other efforts to - with apologies to the original version - "make a commitment if necessary but not necessarily a commitment".
[24] In summary, there has been excessive delay beyond that which the nature of the process requires, which is not attributable to the Applicant, and for which there is no adequate justification. The Applicant is entitled to an order of mandamus.
[25] In order that the order has some practical effect for both parties, to ensure continuity, and to make such other orders as may be necessary in respect to other government organization upon which the Respondent may depend, I will remain seized of this matter. The Respondent will have the 6 months to make its decision, one way or the other. If an extension is to be sought, it will be done well in advance of the deadline and the burden of justification for an extension will be onerous.
[26] For these reasons, an order for mandamus on terms will be granted. There is no issue for certification.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4953-04
STYLE OF CAUSE: ABDULHAKIM HAMALIPOOR v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 24, 2005
REASONS FOR ORDER: Phelan J.
DATED: June 3, 2005
APPEARANCES:
Mr. Paul VanderVennen FOR THE APPLICANT
Ms. A. Leena Jaakkimainen FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
VanderVennen Lehrer
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT