Ottawa, Ontario, Thursday the 18th day of August 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] On February 10, 2000, Mr. Uppal submitted an application for permanent residence in Canada pursuant to the spousal sponsorship provisions of the former Immigration Act. When, in May of 2003, his application remained outstanding, Mr. Uppal commenced this application in which he seeks an order of mandamus directing the Canadian High Commission in New Delhi, India to complete the processing of his application within 90 days, and costs.
[2] By the time this application for judicial review came on for hearing, the parties had reached an agreement that an order should issue directing that the application be finalized within 120 days of the date of receipt of certain updated or additional information. The particular terms of the agreement are contained in the order which follows these reasons. I am satisfied on the record before me that such an order is appropriate in the circumstances.
[3] The parties were, however, unable to reach agreement with respect to Mr. Uppal's request for costs. Therefore, the Court heard oral argument with respect to the issue of costs and these reasons deal with that disputed issue.
[4] In contention are both Mr. Uppal's entitlement costs and, if this is an appropriate case for an award of costs, the quantum of such costs. Mr. Uppal seeks costs in the amount of $7,500.00.
[5] Costs are generally not awarded in applications for leave and for judicial review brought in the context of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act"). This is because Rule 22 of the Federal Court Immigration and Refugee Protection Rules, SOR/2002-232 ("Rules") provides that no costs shall be awarded in proceedings under the Rules "unless the Court, for special reasons, so orders".
[6] The jurisprudence of the Court that has considered this rule, and its predecessor, is to the effect that a finding that an order of mandamus is warranted is not, by itself, sufficient to justify the award of costs. See, for example, Kalachnikov v. Canada(Minister of Citizenship and Immigration) (2003), 236 F.T.R. 142 (T.D.). Each request for costs will turn upon the particular circumstances of the case.
[7] In the present case, at the time Mr. Uppal applied for permanent residence in Canada, he was already known to Citizenship and Immigration Canada. The tribunal record reflects that he had reported to immigration officials at PearsonInternational Airport in Toronto on July 19, 1988, without evidence of identity, and claimed to have used a photo-substituted stolen or fraudulent British passport, to have boarded an aircraft and flown to Canada, and to have destroyed the false passport and his ticket en route to Canada. Mr. Uppal claimed to have always been a member of a terrorist organization, the All India Sikh Students Federation, to have distributed weapons to this group, to have wounded several people with guns and grenades, and to be wanted by Indian police. Once in Canada, he made a refugee claim, but was found to have no credible basis for that claim. Mr. Uppal then failed to report for removal from Canada on March 21, 1991. He was arrested on August 3, 1992 on an immigration warrant. While detained pursuant to that warrant, on December 9, 1992 he escaped from custody. After his escape, Mr. Uppal left the country surreptitiously, illegally entering the United States. While in detention in Canada, Citizenship and Immigration Canada had been unable to establish Mr. Uppal's true identity. The consequence of this past behaviour upon his application for permanent residence was that more extensive criminal and security checks were required.
[8] While none of the steps required to process Mr. Uppal's application were concluded speedily, and an embarrassing gaffe occurred when Citizenship and Immigration Canada attempted to convoke Mr. Uppal for an interview in New York after it had required him to leave the United States and legally enter India, I have not been persuaded that the pace was so slow or lax as to give rise to special circumstances and an award of costs. On the whole of the record (including the portion not disclosed to Mr. Uppal, as authorized by an order of the Court made pursuant to section 87 of the Act), there is no evidence that I can see of conduct that is unfair, oppressive, improper or actuated by bad faith.
[9] It follows that the request for costs is dismissed.
ORDER
[10] THIS COURT ORDERS THAT:
1. An order in the nature of mandamus issues, requiring the respondent to process Mr. Uppal's application for permanent residence in Canada in accordance with the law and the Act, and in accordance with the following terms:
(i) The respondent shall process Mr. Uppal's application for permanent residence in Canada and provide him with a decision with respect to the application within 120 days of receiving all of the documentation which has been requested from Mr. Uppal and which is required from Mr. Uppal, as set out more particularly in the letter from the Canadian High Commission dated May 12, 2005 (some of which documentation may already have been provided).
(ii) The period for making the decision shall be subject to further extension by the Court, on motion made by the respondent, if the respondent applies for such extension before the expiration of the 120-day period, and if the respondent is able to establish on evidence that such further time is required due to causes or circumstances beyond his control.
2. No costs are awarded.
"Eleanor R. Dawson"
______________________________
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4493-04
STYLE OF CAUSE: SATPAL SINGH UPPAL V. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 27, 2005
FOR ORDER
APPEARANCES:
MENDEL GREEN FOR THE APPLICANT
MIELKA VISNIC FOR THE RESPONDENT
SOLICITORS OF RECORD:
GREEN AND SPIEGEL FOR THE APPLICANT
BARRISTERS AND SOLICITORS
TORONTO, ONTARIO
JOHN H. SIMS, Q.C.