Docket: IMM-1383-20
Citation: 2021 FC 712
Ottawa, Ontario, July 6, 2021
PRESENT: The Honourable Mr. Justice Ahmed
| BETWEEN:
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| GHUFRAN ALMUHTADI,
ABDULRHMAN TASKIA, and
YAZAN TASKIA by his litigation guardian GHUFRAN ALMUHTADI
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| Applicants
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| and
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| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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| Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
The Applicants applied for permanent resident status in October 2016, but Immigration, Refugees and Citizenship Canada (“IRCC”
) has yet to process their application. The Applicants have acted diligently throughout the application process and completed all of IRCC’s requests in a timely manner. However, the security clearance for one of the Applicants remains outstanding, thus resulting in IRCC’s delay.
[2]
The Applicants argue that IRCC’s delay is unreasonable. They accordingly seek an order of mandamus, requiring IRCC to process their application on an expedited basis.
[3]
For the reasons that follow, I find an order of mandamus is warranted. The Respondents have not provided an adequate justification for the unreasonable delay in determining the Applicants’ permanent residency status. I therefore grant this application for judicial review.
II.
Facts
A.
The Applicants
[4]
The Applicants, all nationals of Syria, are a family: Ms. Ghufran Almuhtadi; her husband, Mr. Abdulrhman Taskia; and their son, Yazan Taskia, born 2014 (the “Minor Applicant”
). Ms. Almuhtadi and Mr. Taskia have a second son, Iyad Taskia, born 2015, who is a Canadian citizen and not an applicant in this matter.
[5]
Mr. Taskia was born in 1973 in Aleppo, Syria. He moved to Saudi Arabia as a child in 1980. He left school and began working in 1990, and he opened his own plastics manufacturing business in 2000.
[6]
Ms. Almuhtadi was also born in Aleppo in 1982. She moved to Saudi Arabia to be with Mr. Taskia in 2013.
[7]
Ms. Almuhtadi and Mr. Taskia married in 2010, shortly after the dissolution of Mr. Taskia’s first marriage. Mr. Taskia has five children with his ex-wife.
[8]
Mr. Taskia’s legal residence in Saudi Arabia was dependent on his ability to financially invest in the country as a business owner. In December 2015, Mr. Taskia began to worry about meeting the requirements to renew his residence status in Saudi Arabia because of his deteriorating financial situation, which correlated with Saudi Arabia’s economic difficulties at that time due to falling oil prices.
[9]
The Applicants feared returning to Syria, as they have family members associated with the Muslim Brotherhood and believed they would be considered opponents of the current regime. The Applicants thus came to Canada in January 2016 and made a claim for refugee protection.
[10]
In a decision dated September 21, 2016, the Refugee Protection Division (“RPD”
) found the Applicants were Convention refugees under section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”
). The RPD concluded the Applicants had a serious risk of persecution in Syria and were not excluded from refugee protection by virtue of their residence in Saudi Arabia, as Mr. Taskia “is no longer in a position to maintain his investor status in Saudi Arabia.”
[11]
On October 2, 2016, the Applicants paid the required processing fees for their permanent residency application. On October 8, 2016, IRCC sent an email to the Applicants confirming receipt of their application.
[12]
In a letter dated October 17, 2017, IRCC informed the Applicants that they met the eligibility requirements to apply for permanent resident status.
[13]
In May 2018, IRCC provided the Applicants with medical examination instructions via email, which the Applicants completed later that month.
[14]
The Applicants contacted IRCC numerous times to confirm the status of their application, but IRCC did not inform the Applicants of the reason for delay. The Applicants twice contacted IRCC regarding their application in 2019. On November 29, 2019, an IRCC agent informed the Applicants that their application was “still in progress”
and that IRCC would “make all the necessary efforts to finalize the application as soon as possible.”
Similarly, a Member of Parliament made approximately 34 requests to IRCC for an update on the Applicants’ file between May 2017 and April 2021, but IRCC only responded by noting the Applicants’ file remains under review.
[15]
On February 26, 2020, the Applicants filed this application for judicial review.
B.
Pending Security Clearance
[16]
In an affidavit dated May 27, 2021, Mr. Asif Javed, an employee of IRCC, stated that the Applicants’ permanent residency application had not yet been determined because the security clearance of Mr. Taskia remained outstanding. Mr. Javed explained that the security assessment of Mr. Taskia was under review by the National Security Screening Division (“NSSD”
), a branch of the Canada Border Services Agency (“CBSA”
). According to Mr. Javed, the NSSD assessment is considered by IRCC in determining admissibility and its conclusion is either positive, negative, or inconclusive.
[17]
Mr. Javed stated the NSSD process could be complex, involving foreign partners and classified information. Mr. Javed was unable to provide a date for when Mr. Taskia’s security screening would be complete. However, he stated that the NSSD had provided IRCC with a preliminary assessment of Mr. Taskia’s admissibility, which was inconclusive. Mr. Javed noted that the COVID-19 pandemic has affected government operations and processing applications. Additionally, Mr. Javed stated that Mr. Taskia might need to attend an in-person interview in Montreal for IRCC to make a final determination on admissibility.
[18]
As noted by the Applicants, the information in Mr. Javed’s affidavit differs from the information provided in Mr. Brett MacNeil’s affidavit, previously submitted by the Respondents and dated August 10, 2020. In that affidavit, Mr. MacNeil stated “the Applicants’ security screenings are currently being reviewed by [the NSSD]”
, thus indicating that the security clearance remained outstanding for all of the Applicants, not for Mr. Taskia alone.
[19]
Under cross-examination, Mr. Javed confirmed that Ms. Almuhtadi passed her security screening in October 2016. Mr. Javed was unable to confirm whether the permanent resident status for Ms. Almuhtadi and the Minor Applicant could be determined while the status for Mr. Taskia remained outstanding.
III.
Legislative Regime
[20]
Under section 21 of the IRPA, a Convention refugee may become a permanent resident if they meet the relevant criteria and are not inadmissible:
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[21]
The Applicants are not otherwise barred from receiving permanent resident status. The Applicants are not excluded from refugee protection by virtue of sections 98 and 112(3) of the IRPA. The Applicants have not been determined inadmissible to Canada under sections 34-42 of the IRPA, nor are they the subject of an inadmissibility report under section 44. Further, the Applicants do not belong to a prescribed class of persons who cannot become permanent residents under section 177 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”
).
IV.
Preliminary Issue: Style of Cause
[22]
The Applicants seek to amend the style of cause to name both the Minister of Citizenship and Immigration (the “Minister”
) and the Minister of Public Safety and Emergency Preparedness as the Respondents. The Applicants argue this amendment is appropriate because both Ministers are responsible for the admissibility assessment necessary to finalize the Applicants’ permanent residency application.
[23]
The Respondents oppose by asserting that the Minister of Public Safety and Emergency Preparedness is not a party relevant to this application.
[24]
I shall amend the style of cause in accordance with the Applicants’ request. The Minister of Public Safety and Emergency Preparedness plays a key role in determining the Applicants’ admissibility and is thus implicated in the delay at issue.
V.
Preliminary Issue: Mootness
[25]
The Respondents submit this application is now moot and should therefore be dismissed. In particular, the Respondents note that IRCC is now processing the Applicants’ permanent residency applications. On June 16, 2021, IRCC informed Ms. Almuhtadi that her application for permanent residency was nearly complete and invited her to submit further information through the “PR Confirmation Portal.”
On or about June 30, 2021, Mr. Taskia received a similar letter from IRCC.
[26]
Citing Borowski v Canada (Attorney General), [1989] 1 SCR 342 (“Borowski”
) at 353, my colleague, Justice Gleeson described the doctrine of mootness in Khizar v Canada (Public Safety and Emergency Preparedness), 2021 FC 641:
[20] The doctrine of mootness holds that the Court may decline to determine a matter where doing so will neither resolve the controversy between the parties nor practically impact the parties’ rights. A controversy must exist not only at the time the proceeding is commenced but also at the time the Court is asked to determine the matter. As such, where events occur after a proceeding is initiated, that resolve or remove the live controversy, the matter will be moot.
[27]
In this instance, the controversy between the parties remains unresolved. The documents recently submitted to the Court display that IRCC has begun to process the Applicants’ permanent residency applications, but their applications have yet to be determined. Until a final determination is made, this case is not moot.
VI.
Issues
[28]
The sole issue raised in this application for judicial review is whether the issuance of a mandamus order is warranted, and in particular:
Is the delay unreasonable?
Does the balance of convenience favour the Respondents?
VII.
Analysis
[29]
The Applicants seek an order of mandamus, requiring IRCC to process their application on an expedited basis.
[30]
An order of mandamus compels the performance of a particular statutory duty. It is an extraordinary remedy and mandamus applications must be assessed on the particular facts of each case (Tapie v Canada (Citizenship and Immigration), 2007 FC 1048 at para 7). As confirmed by the Federal Court of Appeal in Apotex v Canada (Attorney General), [1994] 1 FC 742, 69 FTR 152 (FCA) at para 55, the following conditions must be met to issue mandamus:
There must be a public legal duty to act;
The duty must be owed to the applicant;
There is a clear right to performance of that duty:
Where the duty sought to be enforced is discretionary, consideration must be given to the nature and manner of exercise of that discretion;
No other adequate remedy is available to the applicant;
The order sought will be of some practical value or effect;
There is no equitable bar to the relief sought; and
On a
“balance of convenience,”
an order of mandamus should be issued.
[31]
In addition to the balance of convenience, the issue of whether to grant mandamus in this case concerns the clear right to the performance of IRCC’s duty to determine the Applicants’ permanent residency application, or more accurately, the reasonableness of the delay during which no such performance has occurred (Abdolkhaleghi v Canada (Minister of Citizenship and Immigration), 2005 FC 729 at para 13).
A.
Is the delay unreasonable?
[32]
A delay may be unreasonable if the following three criteria are met (Thomas v Canada (Public Safety and Emergency Preparedness), 2020 FC 164 at para 19, citing Conille v Canada (Minister of Citizenship and Immigration), [1999] 2 FC 33, 159 FTR 215 (FCTD) (“Conille”
) at para 23):
the delay in question is prima facie longer than the nature of the process required;
the applicants are not responsible for the delay; and
the authority responsible for the delay has not provided satisfactory justification.
[33]
It is uncontroversial that the first two prongs of the Conille test are met.
[34]
With respect to the first prong, the average processing time for applications for permanent residency for Convention refugees is 21 months according to IRCC. At the time of the hearing for this application, the Applicants will have been waiting approximately 57 months for their application for permanent residency to be processed. The Applicants have therefore been waiting nearly triple the average time, an estimate which can be used to gauge what constitutes a reasonable amount of time (Mersad v Canada (Citizenship and Immigration), 2014 FC 543 at para 17). Even in light of the COVID-19 pandemic, which has slowed IRCC processing times, I find the delay in question is prima facie longer than the nature of the process required.
[35]
With respect to the second prong of the Conille test, the Applicants have satisfied the procedural requirements of the IRPA and the IRPR by providing the necessary supporting documentation and paying the required processing fees.
[36]
The determinative issue is, therefore, whether the Respondents have provided a satisfactory justification for the delay in processing the Applicants’ permanent residency application. For the reasons that follow, I find they have not.
[37]
The reasonableness of a delay depends on the facts of a given case; the jurisprudence is only helpful in quantifying what constitutes an unreasonable delay insofar as it provides broad, guiding parameters (Tameh v Canada (Public Safety and Emergency Preparedness), 2017 FC 288 at para 52). There is no uniform length of time for the limit of what is reasonable (Bhatnager v Canada (Minister of Employment & Immigration), [1985] 2 FC 315, [1985] FCJ No 924 (FC) at para 4). That said, this Court has previously found a delay of two to three years or greater to be unreasonable (Dragan v Canada (Minister of Citizenship and Immigration), 2003 FC 211 at para 55).
[38]
In the case at hand, the Applicants have been waiting for approximately three years beyond when they reasonably expected to have their application processed, perhaps less when the COVID-19 pandemic is considered.
[39]
The Applicants assert this delay is unreasonable because:
The Respondents provided no details in their affidavits as to what security issues justify the delay, if any.
The Applicants were found eligible by the CBSA to put forward a refugee claim, a process involving an assessment of inadmissibility under sections 34-37 of the IRPA, all security related provisions.
The Respondents did not raise exclusion issues at the RPD, which under Article 1F of the United Nations Convention Relating to the Status of Refugees also relate to security issues.
The Applicants’ refugee claims were submitted in February 2016, giving the Respondents ample time and opportunity to review any security issues that may arise.
The Respondents never indicated to the Applicants that security checks were ongoing and a cause of the delay until this application for judicial review was filed, despite several requests for an update on the file and an explanation for the delay.
[40]
As justification for the delay, the Respondents rely upon the blanket statement that security checks are pending for Mr. Taskia and that issuing an order of mandamus would have the effect of aborting an important security investigation. This Court has repeatedly held that such an explanation alone is inadequate (Kanthasamyiyar v Canada (Citizenship and Immigration), 2015 FC 1248 at paras 49-50, citing Abdolkhaleghi v Canada (Minister of Citizenship and Immigration), 2005 FC 729 at para 26). The Respondents have provided no details of the security concerns in the material filed for this application, aside from counsel for the Respondents’ statement that the Applicants’ family members are involved in an organization that are considered enemies of the Syrian regime. However, this statement applies to the Applicants equally, not Mr. Taskia in particular, and was not raised by IRCC or the CBSA in the record.
[41]
Further, IRCC’s delay is not justified by the fact that its processing of the Applicants’ permanent residency application is contingent upon outstanding processes at the NSSD, which receives advice from the Canadian Security Intelligence Service (“CSIS”
) and the CBSA. This principle was affirmed by Justice Harrington in Singh v Canada (Minister of Citizenship and Immigration), 2005 FC 544:
[16] It matters not whether the delays lie within the Minister’s office, or with CSIS. The Minister had a duty to act with reasonable diligence, taking into account that resources may be limited. That duty is not satisfied simply by a delegation to CSIS, which falls within the purview of another Minister.
[42]
In light of the above, I find Mr. Taskia’s pending security clearance is not an adequate justification for the delay in processing the Applicants’ permanent residency application.
[43]
In arguing to the contrary, the Respondents rely upon Seyoboka v Canada (Minister of Citizenship and Immigration), 2005 FC 1290 (“Seyoboka”
) and Bhatia v Canada (Minister of Citizenship and Immigration), 2005 FC 1244 (“Bhatia”
), for instances where this Court has found that delays longer than the delay faced by the Applicants were reasonable on the basis that there was an outstanding security clearance.
[44]
I find both Seyoboka and Bhatia are distinguishable from the case at hand.
[45]
In Seyoboka, Justice Pinard found the applicant contributed to the delay by providing new information and amending his file, and the Minister applied to vacate the applicant’s refugee protection status in a manner that was not frivolous (Seyoboka at paras 8-10). In this case, the delay in question is not due to the Applicants’ actions, and the Respondents are not seeking to vacate the Applicants’ refugee protection status.
[46]
In Bhatia, although the applicant submitted their permanent residency application in 1994, Justice Shore found the period for assessing the delay began in 2003, after the litigation to vacate the applicant’s refugee status was resolved. The delay in Bhatia was therefore found to be reasonable, as it spanned less than two years (Bhatia at para 19). The Respondents, in asserting the application in Bhatia was filed eleven years before the application for judicial review was heard, omit the fundamental details that underpin Justice Shore’s determination.
[47]
Finally, I find the COVID-19 pandemic does not fully explain IRCC’s delay. As noted by the Applicants, this reasoning is not applicable for the period leading up to March 2020, approximately 3.5 years after the Applicants submitted their application for permanent residency. In the absence of evidence to the contrary, COVID-19 also does not negate the Respondents’ decision-making capacity for the entirety of time subsequent to March 2020. The pandemic was undoubtedly disruptive, but governmental processes have slowly resumed and decisions are being made.
B.
Does the balance of convenience favour the Respondents?
[48]
The Respondents assert the balance of convenience favours not granting a mandamus order, reiterating that an investigation into admissibility must be complete before a decision is made regarding an application for permanent residency.
[49]
I disagree. As outlined above, such reasoning does not justify the delay in question. In contrast, Ms. Almuhtadi explains in her supporting affidavit how the delay has negatively impacted the Applicants:
The delay caused by IRCC has had a negative affect on my family. Firstly, we continue to live in fear and anxiety. My husband has been especially affected by this. He suffers from depression, for which he takes medication for the past two years. He wakes up with nightmares. We both fear that if our status is not secured in Canada, we will have nowhere to go but Syria, where we fear for our lives. Living in this constant fear and uncertainty has affected our well-being.
[…]
I have not seen my own family in eight years. My mom passed away, but my father is still living in Saudi Arabia. Although I now have a Refugee Travel Document, Saudi Arabia does not accept this document. I desperately want to see my father. He is now thinking of returning to Syria. He is old and it is his home. If he returns to Syria I will never be able to see him again. This would be devastating.
[50]
In light of the above, I find the balance of convenience favours the Applicants, thus warranting an order of mandamus.
VIII.
Order Sought
[51]
The Applicants request that IRCC process the Applicants’ permanent residency applications within 7 days of the date of this decision. The Applicants assert there is no impediment to their landing, as IRCC has sent letters to both Ms. Almuhtadi and Mr. Taskia confirming that their applications are in the final stages of being processed. The Applicants’ request is a marked departure from the one stipulated in their Further Memorandum of Argument, requesting that IRCC process the application of Ms. Almuhtadi and the Minor Applicant within two months.
[52]
In a letter dated June 30, 2021, the Respondents assert that Mr. Taskia’s application will take at least 6 months to process, as he may need to attend an in-person interview in Montreal.
[53]
Considering the parties’ submissions, I order IRCC to process the Applicants’ permanent residency applications within 30 days of the date of this decision. There is little reason for delay regarding the application of Ms. Almuhtadi and the Minor Applicant. Further, IRCC has informed Mr. Taskia that it is ready to finalize his application. If the information IRCC provided to Mr. Taskia is accurate, it should not take 6 months to process his application. If such information is inaccurate, then 30 days shall give IRCC enough time to process Mr. Taskia’s application on an expedited basis in light of its representation that his application is nearly finalized.
IX.
Costs
[54]
The Applicants seek $7,500 in costs on a solicitor-client basis. The Applicants submit the following grounds for seeking costs, among others:
Ms. Almuhtadi and the Minor Applicant could have been determined permanent residents as early as May 2018, once their medical certificates were completed.
The Applicants were kept in the dark regarding the status of their security clearances, and there remains no adequate explanation for the delay of approximately 57 months.
A Member of Parliament made approximately 34 requests to IRCC for an update on the Applicants’ file between May 2017 and April 2021, but IRCC did not explain the reason for the delay in processing the Applicants’ permanent residency application.
[55]
Under Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 (“Rules”
), costs are only awarded in applications for judicial review made pursuant to the IRPA for “special reasons”
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[56]
The threshold for establishing “special reasons”
is high. It includes instances where one party has acted in a manner that may be characterized as unfair, oppressive, improper or actuated by bad faith (Taghiyeva v Canada (Citizenship and Immigration), 2019 FC 1262 at paras 17-23; Ndungu v Canada (Citizenship and Immigration), 2011 FCA 208 at para 7).
[57]
In my view, this matter warrants an award of costs to the Applicants.
[58]
The Applicants have waited far beyond the average processing time of 21 months. The permanent residency status of Ms. Almuhtadi and the Minor Applicant could have been processed in May 2018 following the completion of their medical certificates. If Ms. Almuhtadi and the Minor Applicant became permanent residents at that time, they would be well on their way to applying for citizenship by now.
[59]
The Respondents submit the delay in question was due to the Applicants’ permanent residency status being processed as a single application, for which the security clearance of Mr. Taskia remained pending. The Respondents assert they could not sever the applications of Ms. Almuhtadi and the Minor Applicant from Mr. Taskia without a request from the Applicants.
[60]
I am not persuaded by the Respondents’ argument. The Respondents have provided no authority for the notion that the application for permanent residency cannot be severed without a request from the Applicants, and the Respondents ultimately severed the Applicants’ application without such a request. The Respondents’ explanation also fails to account for IRCC’s sustained opacity. The Applicants made numerous requests to IRCC for further information, yet they were never informed of the reasons for the delay in processing their application, thus making it impossible for them to know they ought to sever their application to expedite the process.
[61]
The Applicants were only informed of the reason for the delay in processing their application once they brought this application for judicial review and the Respondents submitted their affidavit evidence. If it were not for the Applicants’ litigation, it is unclear how much longer they would be kept in the dark regarding the cause for delay.
[62]
IRCC also failed to provide transparent information during the litigation process. Mr. MacNeil indicated in his August 10, 2020 affidavit that the security screening of the Applicants had not been completed as of that date. However, Ms. Almuhtadi passed her security screening as early as October 2016. Under cross-examination, after it came to light that Mr. Taskia’s pending security clearance was the reason for the delay, counsel for the Applicants asked Mr. Javed about NSSD’s timing for this case. Mr. Javed indicated the Applicants should ask NSSD themselves, even though Mr. Javed himself stated that NSSD would not inform him how long the assessment would take.
[63]
While I accept the Respondents’ affiants could not speak on behalf of NSSD, I find their answers are inaccurate and evasive. Mr. MacNeil lacked due diligence in inaccurately affirming that the Applicants’ security clearances were outstanding, when in fact only Mr. Taskia’s was outstanding. Additionally, it was not a display of good faith for Mr. Javed to instruct the Applicants to undertake a process that he knows is futile.
[64]
For the reasons outlined above, I award the Applicants $1,500 in costs.
X.
Question for Certification
[65]
The parties have not submitted a question for certification to permit an appeal under subsection 74(d) of the IRPA. However, the Respondents request an opportunity to “propose a certified question potentially with respect to authority to split immigration applications unilaterally and […] regarding notice and relief requested for a mandamus application, should these questions be appropriate in the circumstances.”
[66]
For a question to be certified, it must be “a serious question that is dispositive of the appeal, transcends the interests of the parties and raises an issue of broad significance of general importance”
(Lunyamila v Canada (Public Safety and Emergency Preparedness), 2018 FCA 22 at para 46).
[67]
The Minister’s authority to split or sever immigration applications unilaterally is not dispositive of this matter. This case concerns transparency and delay, not jurisdiction. Whether the Minister had the authority to sever the Applicants’ permanent residency application unilaterally has no bearing on whether the Minister’s delay is reasonable.
[68]
The Respondents’ potential question regarding notice and relief requested for a mandamus application is too vague to consider its potential merits.
[69]
I therefore decline the Respondents’ request for an opportunity to submit a question for certification.
XI.
Conclusion
[70]
I find IRCC’s delay in processing the Applicants’ permanent residency applications is unreasonable. I therefore grant this application for judicial review, order IRCC to determine the Applicants’ permanent residency applications within 30 days from the date of this decision, and award the Applicants $1,500 in costs.
[71]
I find there is no question for certification.
JUDGMENT IN IMM-1383-20
THIS COURT’S JUDGMENT is that:
This application for judicial review is granted.An order of mandamus is hereby issued, requiring IRCC to determine the Applicants’ permanent residency applications within 30 days from the date of this decision.
The style of cause is amended to name the Minister of Public Safety and Emergency Preparedness as a respondent.
The Respondents shall pay the Applicants $1,500 in costs forthwith.
There is no question for certification.
"Shirzad A."
Judge
FEDERAL COURT
SOLICITORS OF RECORD
| DOCKET:
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IMM-1383-20
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| STYLE OF CAUSE:
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GHUFRAN ALMUHTADI, ABDULRHMAN TASKIA AND YAZAN TASKIA BY HIS LITIGATION GUARDIAN GHUFRAN ALMUHTADI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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| PLACE OF HEARING:
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HELD BY VIDEOCONFERENCE
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| DATE OF HEARING:
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June 30, 2021
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| JUDGMENT AND reasons:
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AHMED J.
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| DATED:
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July 6, 2021
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APPEARANCES:
| Ronald Poulton
Charlotte Cass
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For The Applicants
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| Jocelyn Espejo-Clarke
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For The RespondentS
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SOLICITORS OF RECORD:
| Poulton Law Office
Barristers and Solicitors
Toronto, Ontario
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For The Applicants
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| Attorney General of Canada
Toronto, Ontario
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For The RespondentS
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