Ottawa, Ontario, September 29, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
HASSAN VAZIRI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Homayoun Vaziri, a Canadian citizen, wishes to bring his father, Mr. Hassan Vaziri, to Canada as a permanent resident. Although he commenced the two-part process (described below) in August 2003, no decision has yet been made as to whether the father will be issued a permanent resident visa as a sponsored member of the family class. The father and son, jointly, have applied to this Court for an order of mandamus requiring the Minister of Citizenship and Immigration (the Minister) to render a decision on the father’s sponsored application for permanent residence.
[2] The problems presented by this application begin with the three classes of immigrants set out in s. 12 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) – family class, economic class and refugee class. The Applicants assert that consideration of their applications was severely and negatively impacted beginning in 2001 or 2002 when the Minister, acting administratively, established target levels for immigration to Canada that incorporated a 60:40 ratio between the economic and non-economic classes. The problem for the Applicants worsened when, in 2003, the Minister placed further restrictions on the processing of applications for parents and grandparents by giving priority to spouses and dependent children within the family class. The effect was that sponsorship applications for parents and grandparents have been processed at much slower rates. Indeed, from May 2004 to April 2005, visa officers were under instructions to suspend the processing of parent and grandparent sponsorship applications.
[3] The Applicants submit that the Minister has no legal authority to establish the targets or to put into place a process that seriously detracts from the rights of parents and grandparents to become sponsored permanent residents, unless authorized by regulation made under s. 14(2) of IRPA. There are no such regulations.
[4] The Applicants in this application are typical of a certain category of family class applicants none of whom are spouses or dependant children of the sponsors and most of whom are – as here - parents or grandparents of their sponsors. A number of similar applications for judicial review have been brought to the Court with the intention that these cases could form the basis of an application for conversion to an action and certification as a class action. The parties agreed that this and one other application (Gorbatyuk et al v. Canada (Minister of Citizenship and Immigration), Court File No. IMM-7333-05) would be dealt with as test cases for the issues raised.
Issues
[5] I would frame the issues as follows:
- In the absence of regulations enacted under s. 14(2) of IRPA, does the Minister act without authority in setting targets for visa approvals by class and establishing procedures that prioritize sponsored applications within the family class?
- Have the Applicants met the test for mandamus?
[6] Although the analysis focuses on the Applicants, the issues raised and my conclusions will have application to the larger group of parents and grandparents waiting for sponsored permanent residence in Canada.
[7] In the analysis of these issues, I will begin with a discussion of the sponsorship process in general and for these Applicants. In doing so, I will set out the legal framework and the historical context that has given rise to the policies and procedures that are the subject of this application. A discussion of each of the issues follows.
CIC Processing of Sponsored Applications
[8] The process to become a permanent resident based on a sponsored application involves two steps:
- The sponsor must submit a sponsorship application (IRPA, s. 13(1); Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), s. 130). These applications are processed at CIC’s Case Processing Centre in Mississauga (CPC-M).
- If the sponsor is approved, the individual seeking to come to Canada must submit an application for permanent residence (IRPA, s. 12; Regulations, s. 10(4)). The PR applications are processed at overseas visa offices. In the case of Mr. Vaziri, visa officers in Damascus are responsible for the assessment.
[9] Mr. Homayoun Vaziri submitted a sponsorship application and fee on August 21, 2003. For some time, he received no response. In correspondence dated May 27, 2004, from CIC to Mr. Homayoun Vaziri, the delay was explained as follows:
Demand to immigrate to Canada continues to rise. At this time, with immigrant application intake exceeding the planned immigration landings and our operational capacity, working within available resources often means making some difficult choices. While these choices may lead to increased inventories and longer processing times, they are decisions that must be made in order to maintain a balanced and sustainable immigration program.
To meet the government’s stated commitment to spouses, partners and dependent children while keeping economic immigrant landings as close as possible to our target, Citizenship and Immigration Canada has made those difficult decisions. At this time, we have unprecedented demand in the family class program and some components of this class will experience growing processing times, particularly for parents and grandparents.
Other evidence presented in this hearing corroborates this explanation for the delay.
[10] Further information on the record before me shows that CIC attempts to coordinate the timing of sponsorship approvals with expected time requirements at the overseas visa offices. That is, CPC-M will delay processing a sponsorship application to reduce subsequent delay at overseas visa offices. From May 2004 to April 2005, CPC-M temporarily paused the processing of sponsorship due to the reduced targets for sponsored parents and grandparents coupled with government policy to give higher priority to spouses and dependent children. As explained by Mr. David Manicom, Director, Operational Coordination, International Region, CIC, in his affidavit:
The rationale [for the pause] was: since visa officers already had existing inventories on hand more than sufficient to do the processing necessary to meet the target range for 2004, there was no benefit to potential sponsored immigrants in this class in approving additional sponsorships in Canada at that time. Processing further sponsorships would simply have moved the inventory of cases from one location to another and CPC-M was better equipped to centrally handle the inventory, compared to the individual visa offices worldwide.
Mr. Homayoun Vaziri’s sponsorship application was caught in this temporary pause.
[11] In October 2005, the sponsorship application was finally approved. With sponsorship approval in hand, Mr. Hassan Vaziri submitted his application for permanent residence (PR) on January 22, 2006. Although the Applicants believe that the PR application will take three years, Mr. Manicom states that his belief is that Mr. Vaziri’s father’s application will “most likely be finalized in early 2007”.
Lawfulness of Minister’s Actions
Overview
[12] Each year, Canada receives sponsored PR applications numbering well into the hundreds of thousands. Each year, the Minister, in an annual report to Parliament (which Report is required pursuant to s. 94 of IRPA), identifies target ranges for the overall total number of PR applications to be accepted in the coming year and breaks down that range by categories. By way of example, the current Report sets out a range of 17,000 to 19,000 for the category of parents and grandparents in 2006. Also set out in the Report is the planned ratio of economic to non-economic immigrants (56:44 for 2006). These targets reflect policy decisions of the Minister. In turn, these policy decisions are supported by operational decisions by the Minister (and carried out by CIC officials such as Mr. Manicom) whereby CIC manages its operations in such a way as to meet the target ranges. These are the decisions that the Applicants argue are not being lawfully made by the Minister and his delegates.
Statutory Authority
[13] I will begin by reviewing the relevant statutory authorities expressly set out in the IRPA for each of the Minister and the Governor in Council.
[14] The Minister’s general enabling authority is set out in s. 4 of IRPA which provides that the Minister responsible for the administration of the Act is the member of the Queen’s Privy Council designated as such by the Governor in Council. That Minister is the Minister of Citizenship and Immigration.
[15] Pursuant to s. 5 of IRPA, “the Governor in Council may make any regulation that is referred to in this Act.” Specific regulation making authority is contained throughout IRPA. Of specific relevance to this application is s. 14 that establishes the regulation-making authority in respect of Division 1 of IRPA – “Requirements Before Entering Canada and Selection”. This provision is as follows:
|
14. (2) The regulations may prescribe, and govern any matter relating to, classes of permanent residents or foreign nationals, including the classes referred to in section 12, and may include provisions respecting
(a) selection criteria, the weight, if any, to be given to all or some of those criteria, the procedures to be followed in evaluating all or some of those criteria and the circumstances in which an officer may substitute for those criteria their evaluation of the likelihood of a foreign national’s ability to become economically established in Canada;
(b) applications for visas and other documents and their issuance or refusal, with respect to foreign nationals and their family members;
(c) the number of applications that may be processed or approved in a year, the number of visas and other documents that may be issued in a year, and the measures to be taken when that number is exceeded;
(d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals;
(e) sponsorships, undertakings, and penalties for failure to comply with undertakings;
(f) deposits or guarantees of the performance of obligations under this Act that are to be given by any person to the Minister; and
(g) any matter for which a recommendation to the Minister or a decision may or must be made by a designated person, institution or organization with respect to a foreign national or sponsor.
|
|
(2) Ils établissent et régissent les catégories de résidents permanents ou d’étrangers, dont celles visées à l’article 12, et portent notamment sur : a) les critères applicables aux diverses catégories, et les méthodes ou, le cas échéant, les grilles d’appréciation et de pondération de tout ou partie de ces critères, ainsi que les cas où l’agent peut substituer aux critères son appréciation de la capacité de l’étranger à réussir son établissement économique au Canada; b) la demande, la délivrance et le refus de délivrance de visas et autres documents pour les étrangers et les membres de leur famille; c) le nombre de demandes à traiter et dont il peut être disposé et celui de visas ou autres documents à accorder par an, ainsi que les mesures à prendre en cas de dépassement; d) les conditions qui peuvent ou doivent être, quant aux résidents permanents et aux étrangers, imposées, modifiées ou levées, individuellement ou par catégorie; e) le parrainage, les engagements, ainsi que la sanction de leur inobservation; f) les garanties à remettre au ministre pour le respect des obligations découlant de la présente loi; g) les affaires sur lesquelles les personnes ou organismes désignés devront ou pourront statuer ou faire des recommandations au ministre sur les étrangers ou les répondants.
|
[16] Regulations dealing with a number of matters in this Division of the IRPA have been enacted. For example, the Regulations (s. 117(1)) define the members of the family class to include the parents and grandparents of a sponsor. The Regulations (s. 123 to 129) deal with the spouse or common-law partner class. Of note, the Regulations do not include similar detailed provisions for the parent and grandparent class. Nor do the Regulations address the establishment of immigration targets or the procedures for dealing with applications that exceed those targets.
Basis of Applicants’ Position
[17] The Applicants argue that, without a regulation or some other express grant of authority, the Minister is powerless to establish the 60:40 ratio or to prioritize other PR applicants over the FC4 class. The Applicants submit that the Minister lacks the lawful authority to prioritize some PR applications over others, either by preferring economic to non-economic classes, or, more importantly, by preferring spousal and dependent family class applications to parent and grandparent (referred to by CIC as FC4) applications. In the Applicants’ view, such policies can be implemented under the authority of IRPA, but must be done in accordance with ss. 5 and 14.
[18] The Applicants do not argue that the setting of overall target for immigration to Canada requires regulations under s. 14. Rather, they view the setting of the overall target as a ministerial obligation under s. 94 of IRPA (the Annual Report requirement). I express no views on whether that is correct.
Basis of Respondent’s Position
[19] The Respondent, on the other hand, essentially submit that the power to make these policy and operational decisions is implied in the legislative scheme created by IRPA and Regulations. The Respondent points to the broad administrative powers granted to the Minister pursuant to s. 4 of IRPA and the use of the permissive “may” in s. 14 to argue that there is no statutory obligation to enact regulations with respect to these matters. In the absence of regulations specifying exactly what the Minister must do with regard to levels and targets, he argues that he should have the ability to create policies in that regard. Otherwise, the Respondent submits, the Minister, and CIC under him, would be incapable of managing the immigration scheme and it simply would not function.
Need for Policy and Procedures
[20] The Applicants acknowledge that there is a need for a system of measures to ensure the smooth operation of Canada’s immigration policies. I agree. Policies such as the setting of the 60:40 ratio and the establishment of targets by category and the procedures for allocating departmental resources to meet the overall and category targets are necessary. These policies and procedures provide for the orderly and efficient processing of applications and, at the highest level, ensure that a wide variety of interests are addressed. For example, decisions regarding immigration plans are made in consultation with the provinces. While accepting the necessity for such policies and procedures, the Applicants argue that the only way that they can be put in place is through the enactment of Regulations pursuant to s. 14(2) of IRPA.
General Principles
[21] There is no dispute that the Minister and CIC, as public bodies, can only act within the constraints of their legislated jurisdiction, since their authority derives from statute. As stated in Greenisle Environmental Inc. v. Prince Edward Island, [2005] P.E.I.J. No. 41 (QL), 2005 PESCTD 33 at para. 17, a decision of the Supreme Court of Prince Edward Island and relied on by the Applicants:
... [it is a] fundamental principle that executive powers are granted by statute and defined and limited by statute. A statutory delegate may make a decision or rule only if authorized by statute to do so. A statutory delegate has no inherent authority . . .
[22] The Applicants argue that the situation dealt with by the Court in Greenisle is directly applicable to the facts at bar. In Greenisle, the Executive Council of the P.E.I. Government had placed a moratorium on the issuance of a permit for the applicant to develop and operate a construction and demolition disposal site. The issue before the Court was whether the Executive Council acted lawfully. The Court noted that the Legislature of P.E.I. “expressly conferred on the Minister [of Fisheries, Aquaculture and Environment] exclusive jurisdiction over administration of the [relevant provincial statute]”. The Court also noted that there was no provision in the statute that would permit the executive Council to “override and suspend operation of the Regulations by stopping the Minister and the Minister’s Delegate from performing their due administration of the Act”. Thus, in imposing, by discretionary fiat, a moratorium on certain construction, the Executive Council had not acted lawfully. The Applicants assert that, by setting the disputed immigration targets and policies rather than doing so through regulations of the Governor in Council, the Minister was acting just as the Executive Council had in Greenisle.
[23] The situation before me differs from that faced by the Court in Greenisle. The Executive Council in Greenisle overrode an already existing, express, statutory grant of power that had been vested in another corporate body. In contrast, in the application before me, a vacuum exists; there is no express grant of power; and the Minister has acted in that vacuum. Nonetheless, the general rule stated in Greenisle is not controversial. Simply stating those rules does not solve the problem put before this Court. The very question here is whether the scheme created by IRPA does, in fact, authorize the Minister to set target levels and to prioritize certain classes of PR applicants.
[24] The Applicants further cite Brant Dairy Co. v. Ontario (Milk Commission), [1973] S.C.R. 131 in their favour, but that case does not apply. As Chief Justice Laskin stated in Canada (CRTC) v. CTV Television Network Ltd., [1982] 1 S.C.R. 530 at 541:
The Brant Dairy case was concerned with an attempted delegation to a subordinate agency of power conferred upon a senior agency, the power being exercised (improperly, as held by this Court) by a wholesale delegation thereof in the same terms in which it was imposed…. I disagree with this attempted application of the Brant Dairy case. Either the Executive Committee has the power it exercised in imposing the condition or it did not. If not, the matter turned on construction of the relevant provisions of ss. 16 and 17 and not on any principles of delegation and subdelegation.
[25] Here, too, there is no issue of improper delegation through wholesale transferring of discretion. No regulations were created in this case; the Minister merely acted. Similar to the question before the Supreme Court in CTV, above the question here is whether the Minister has the power to prioritize and discriminate between classes.
IRPA as “Framework Legislation”
[26] The Applicants note that the Federal Court of Appeal described IRPA as “framework legislation” in De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2005] F.C.J. No. 2119 (QL) at para. 23, where “the implementation of core policy and principles… are left to regulations.” The Applicants claim that because IRPA is “framework legislation” that “contemplates broad delegations of legislative power” (De Guzman, above), there is a heavy onus on the Minister to enact legislative authority for his administrative actions.
[27] I cannot agree with this argument. First, there is no legal onus on the Minister to enact regulations. The Minister does not have the power to enact regulations under IRPA. In a practical sense, he may propose or recommend regulations; however, the power to enact regulations lies with the Governor in Council. The Minister is charged with administrating the scheme created by IRPA and carrying out powers conferred by IRPA and the Regulations. The Governor in Council has the authority to enact regulations.
[28] Further, the Court of Appeal, in De Guzman, was considering the legal validity of regulations made under s. 14 of IRPA. As noted at para. 24 of De Guzman, s. 14 of IRPA is drafted in language which, on its face, confers wide regulation-making powers, exercisable by the Governor in Council by virtue of subsection 5(1). As acknowledged by the Respondent, there is no question that the Governor in Council could pass regulations setting targets for immigration and establishing procedures to dealing with the targets.
[29] In sum, De Guzman supports the view shared by all parties to this application that s. 14 authorizes the Governor in Council to enact regulations setting immigration targets by class and procedures to address those targets. However, this case does not stand for the proposition that s. 14 places a burden on either the Minister or the Governor in Council to enact regulations. Nor does this case address the legality or illegality of policy or administrative decisions of the Minister.
Relevant Jurisprudence
[30] There are cases, however, that are helpful in analyzing the question before me of the authority of the Minister in the face of an unused regulation making power.
[31] The first of these cases is Capital Cities Communications Inc. v. Canadian Radio- Television Commission, [1978] 2 S.C.R. 141. In Capital Cities, the Canadian Radio-television and Telecommunications Commission (CRTC) had refused to alter a license granted to Rogers Cable TV Ltd. based on previous policy statements issued by itself and the Department of Transport. No regulations, upon which the CRTC could have based their decision, had been enacted in spite of the existence of a regulation-making power vested with the Governor in Council under the Broadcasting Act. The majority of the Court asked this question (at 170):
However, absent any regulations, is the Commission obliged to act only ad hoc in respect of any application for a licence or an amendment thereto, and is it precluded from announcing policies upon which it may act when considering any such applications?
[32] As in the present case, in Capital Cities the regulatory power under the governing statute was very broad. The majority of the Supreme Court found that it was “eminently proper that [the CRTC] lay down guidelines from time to time”, since the governing statute had wide-ranging, embracive objects, the CRTC was given a broad mandate to manage the Canadian broadcasting scheme, and the stated policies were arrived at after input from and consultation with the interested parties.
[33] Capital Cities was followed four years later by CTV, above. That case dealt with a decision by the CRTC Executive Committee to impose, without regulatory authority, a condition on CTV’s broadcasting license to include a certain amount of Canadian content. The Supreme Court unanimously adopted the reasoning of the Chief Justice of the Court of Appeal’s decision that went before them, to the effect that the broad terms found in the objectives of the governing statute authorized the CRTC to impose the license condition. The CRTC maintained the power to fulfil the objectives of the statute by imposing conditions in an ad hoc manner unless and until regulations were enacted; the regulations would have the effect of ousting the Executive Council’s ad hoc power.
[34] Carpenter Fishing Corp. v. Canada (Minister of Fisheries and Oceans), [1997] F.C.J. No. 1811 (QL) (F.C.A.) is also relevant to the issue before me. In that case, the Minister of Fisheries and Oceans (MFO) created a formula, which was in the nature of both a policy and a guideline, to govern how fishing licences would be granted by his Department on an individual basis. The Federal Court of Appeal found the MFO’s decision to be lawful. The decision made by the MFO is similar to the Minister of Citizenship and Immigration’s decision to prioritize certain applications. It was made in response to serious concerns which fell directly under his responsibilities. Hence, the situation in Carpenter Fishing and here are comparable. The actions of both Ministers were practical responses informed by the legitimate policy considerations. The legislative schemes under which each Minister acts are complex and involve dynamic issues.
[35] Taken together, Carpenter Fishing, Capital Cities, and CTV provide direction in this case. The Minister is responsible for the administration of IRPA. In the absence of enacted regulations, he has the power to set policies governing the management of the flow of immigrants to Canada, so long as those policies and decisions are made in good faith and are consistent with the purpose, objectives, and scheme of IRPA. The Governor in Council retains the power to direct how the Minister should administer IRPA through regulations, and may oust the Minister’s powers. However, where there is a vacuum of express statutory or regulatory authority, the Minister must be permitted the flexible authority to administer the system. Without the policies and procedures impugned by the Applicants, the system would fail. Parliament could not have intended that the system fail.
Specific Authority to Prioritize within the Family Class
[36] The Applicants also argue, in conjunction with their main thrust, that the Minister lacked any specific authority to prioritize or discriminate between different groups of family class applicants. I note that such discrimination is recognized in the provisions of IRPA and the Regulations; see for example special privileges conferred only on spouses and partners, set out in Division 2 of the Regulations. It would seem that the kind of discrimination that the Applicants find upsetting is inherent in IRPA, but even if it were not, I am convinced that the power to draw this distinction would fall within the Minister’s power to manage the immigration flow on the basis of social and economic policy considerations. It could be said that this kind of discrimination was the same kind of distinction made by the MFO in Carpenter Fishing, above, based upon vessel length and historical performance of the licence owner. There is nothing in IRPA or the Regulations that appears to detract from such a power; again, this is reflective of the “framework” nature of the Act.
Summary
[37] In summary, I am satisfied that, in the absence of regulations made under s. 14(2) of IRPA, the Minister acted lawfully in establishing the 60:40 ratio, in establishing targets for visa approvals by class and in setting procedures for prioritizing sponsored applications within the family class.
Mandamus
Test for Mandamus
[38] The equitable remedy of mandamus lies to compel the performance of a public legal duty that a public authority refuses or neglects to carry out when called upon to do so. Mandamus can be used to control procedural delays (Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307 at para. 149). The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), aff'd [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 (T.D.), aff’d 2003 FCA 233). The eight factors are:
(i) There must be a public legal duty to act;
(ii) The duty must be owed to the Applicants;
(iii) There must be a clear right to the performance of that duty, meaning that:
a. The Applicants have satisfied all conditions precedent; and
b. There must have been:
I. A prior demand for performance;
II. A reasonable time to comply with the demand, unless there was outright refusal; and
III. An express refusal, or an implied refusal through unreasonable delay;
(iv) No other adequate remedy is available to the Applicants;
(v) The Order sought must be of some practical value or effect;
(vi) There is no equitable bar to the relief sought;
(vii) On a balance of convenience, mandamus should lie.
[39] The Applicants’ arguments rely on their assertion that the Minister’s decision to prioritize other immigrant classes over the parents and grandparents class was unlawful. A finding that the actions of the Minister were unlawful would have provided strong support for granting mandamus. If the Minister had no legal authority to prioritize the various family class applications or to pause the processing of sponsorship applications for parents and grandparents, the arguments that the delay was unreasonable and that the balance of convenience would favour the Applicants would appear to have merit. However, the Applicants have not been successful on the first issue and the arguments that rely on their assertions of unlawful actions are not relevant.
[40] Nevertheless, I will examine the various factors on the basis of the facts before me, relevant jurisprudence and my conclusion that the Minister’s actions were lawful.
Public Legal Duty to Act
[41] Both parties agree that there is a public legal duty requiring the Minister or his delegates to process the Applicants’ PR applications, primarily by virtue of section 11(1) of IRPA.
No Clear Right to the Performance of a Duty: Delay
[42] The next factor to be examined is the existence of a clear right to the performance of the duty. There are a number of elements to this factor of the test for mandamus. The Applicants must have satisfied the conditions precedent giving rise to the duty; there must have been a prior demand for the performance; and there must have been unreasonable delay that amounts to a refusal. It is clear that the Applicants have made a demand for performance. I am also prepared to assume, without deciding, that the conditions precedent have been satisfied. I will consider the final component of this factor; that is, the issue of delay.
[43] One difficulty with this application is that the delay complained of by the Applicants is no longer active. While there was a lengthy delay at CPC-M of the sponsorship application, there is no indication that the current steps in processing the PR application are being delayed in any way. Given the current time forecast for a decision on the PR application, a writ of mandamus specifying that, in essence, they process Mr. Hassan Vaziri’s application within a certain period of time will not change much. In short, there would be little practical effect of an order of mandamus.
[44] The Applicants submit that the Court should calculate the time that has been expended handling their files from the date of filing the sponsorship applications, and not from the later date of filing the PR applications. The Applicants’ main argument is to point out that the Minister clearly regulates the number of parents and grandparents accepted to Canada each year by throttling the “first stage” of the process: the sponsorship application. Hence, it would be manifestly unfair to not consider the full amount of time the Applicants have been waiting to finally know whether they can immigrate to Canada or not.
[45] The Respondent disagrees, pointing out that the decisions are made by separate decision-makers and involve separate considerations; and that there may be a gap in time up to a year between the two applications, since the sponsored parents or grandparents are under no obligation to file a PR application after being sponsored.
[46] In my view, it is not necessary to decide this question. For purposes of this application, I will assume, without deciding, that the time frame should be measured back to the original date of filing of the two sponsorship applications. That is, I will consider whether, cumulatively, the time for processing both the sponsorship application and the PR application have been unreasonable.
[47] In this case, has the time that has passed since the Applicants filed their sponsorship applications amounted to unreasonable delay? I must consider the length of the delay and the reasons for it.
[48] In this case, the processing time so far has been marginally over 3 years. What length is too long? Justice Kelen provided the following wisdom in Dragan, above at para. 55:
A few of the applicants have been waiting for over 2 to 3 years. What period of time would be considered too long to process an immigration file? In [Bhatnager v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 315 (QL) (T.D.)], the delay was four and a half years; in [Dee v. Canada (Minister of Citizenship and Immigration, (1998), 46 Imm. L.R. (2d) 278 (F.C.T.D.))], and in [Bouhaik v. Canada (Minister of Citizenship and Immigration), [2001] A.C.F. No. 155 (QL) (T.D.)], about four years; in Conille, supra, and in Platonov, supra, about three years. All those delays were considered unreasonable on the facts. The holdings did not, in the words of Strayer J. in Bhatnager, supra. at page 317, "fix any uniform length of time as being the limit of what is reasonable." Justice MacKay in Platonov, supra, also expressly cautioned against such an approach at paragraph 10:
Each case turns upon its own facts, and I am not persuaded that the jurisprudence in relation to this matter is particularly helpful, except to outline some parameters within which the Court has issued an order in the nature of mandamus where it has found there has been unusual delay which is not reasonably explained.
[49] At para. 57 of Dragan, above, Justice Kelen noted a pair of cases in which much earlier lengths of delay had grounded orders for mandamus, because the effect of the delay resulted in the removal or loss of the applicants’ substantive rights (this was the case in Dragan itself, where delay threatened to foreclose any possibility of becoming a permanent resident in the future).
[50] In the case at hand, the delays to date, and any further possible delay, have not removed the parents’ or grandparents’ substantive rights; rather, it prevents such rights from being vested for a time. This differs from the situation in Dragan where the rights to a certain method of processing was set to expire. The case before me resembles those cited above at para. 55 of Dragan, as well as Hanano v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1212 (QL), 2004 FC 998, and Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33. In those cases, the delay was found to be excessive, unjustified, and, thus, unreasonable. However, the amount of time in those cases is considerably longer: generally 4 to 5 years, or in the case of Conille, 3 years.
[51] Fortunately, the Court has further guidance in determining what amounts to unreasonable delay. In Conille at para. 23, Justice Tremblay-Lamer held that if a delay is to be considered unreasonable, it must meet three requirements:
(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.
[52] The same guidance was adopted and applied in Hanano, above at para. 10, and Shapovalov v. Canada (Minister of Citizenship and Immigration), 2005 FC 753 at para. 13. To this list of three requirements, I would also add that a person seeking mandamus based on delay must also demonstrate significant prejudice which results from the delay (Blencoe, above at para. 101).
[53] There are two ways to look at whether the delay has been longer than the nature of the process required. The first way is to consider a PR application in a vacuum, without considering whether it relates to a parent or grandparent or to someone from another class. In that case, the deliberate delay at the sponsorship stage and at the beginning of the PR application stage clearly extends the amount of time required to process the Applicants’ applications beyond the time strictly necessary to assess the applications.
[54] On the other hand, if one takes a wider and more detailed view, then the length of time taken is within the time that the nature of the process requires, because there are simply too many applications for Canada to allow them all, resulting in annual levels being set. Even among the number of applications that can be allowed within a given year, the Minister must discriminate between the classes in order to meet the goals of IRPA and the explicit policies of the Government. In this context, applications relating to parents and grandparents require a longer time to process than most other PR applications. The nature of the process is longer.
[55] I prefer the latter view. The “nature of the process” must be informed by a full understanding of where the Applicants’ applications fit within the immigration scheme. It is inherent in the system, as currently constituted, that some PR applications are processed differently than others. FC4 applications are processed slower, in accordance with policies. Therefore the length of time taken to process the Applicants’ files must be viewed in light of this longer process. Upon the evidence before me, then, it does not seem that the delay to date – between 3 and 4 years – is excessive. It would appear that this is in accordance with the expected times to process FC4 applications that were filed in 2003. Indeed, the Respondent indicates that the Applicants’ files are expected to be completed sooner than would be expected, since the rate of PR applications being received in the last year or two is lessening.
[56] There is no contention that the Applicants are responsible for the delay in the process.
[57] I must next consider whether this is justification for the delay. In my view, the Respondent has provided a satisfactory justification for the delay, the substance of which I have discussed immediately above and also in some detail in the analysis of the first issue, above. In short, the delay is the direct result of lawful Ministerial policies which prioritize other PR applicants over the parents and grandparents class, which were effected in response to an overwhelming level of applications that had been submitted to CIC in recent years. I am satisfied that a reasonable explanation for the delay has been provided.
[58] Finally, while the Applicants are seriously inconvenienced and concerned by the delay, I am not persuaded that the delay has significantly prejudiced the Applicants. The separation of parent and child appears to be the main concern of the Applicants in this case. However, the separation can be alleviated through the use of Temporary Resident Visas; this is discussed below.
[59] In sum, the Applicants have not made out an unreasonable delay and, consequently, there is no clear right to the performance of that duty.
An Adequate Alternative Remedy Exists
[60] The Applicants contend that the only way for them to have “secure immigration status” is to have their applications finalized. The Respondent argues that the Applicants may take advantage of Temporary Resident Visas (TRVs) in order to reunite family members while the PR assessment process continues. These visas (often referred to as visitor visas) are obtained quickly and easily, they can be valid for fixed periods of time and they may be renewed. Our Court has found in past cases that temporary resident status, or its analogue under the repealed Immigration Act, can fulfil the objective of IRPA to reunite families (see Gupta v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1099 at para. 11 (T.D.) (QL); Zhang v. Canada (Minister of Citizenship and Immigration), 2005 FC 427 at para. 8).
[61] As evidenced by the affidavits filed by the Applicants, the Applicants appear to premise their arguments on the desire to be reunited after many years apart. Through the use of TRVs, the father and son have at least one other way of being united. While the PR applications are being assessed, TRVs may provide interim relief.
[62] While I appreciate that the Applicants live with uncertainty while the PR applications are being resolved, and that TRVs do not provide the same security or rights as permanent resident status, the use of TRVs is an alternative that is adequate – albeit not perfect. There is no pressing need in this case that the rights vested by PR status be acquired as soon as possible.
Practical Effect
[63] As noted earlier, overseas visa officers are now processing the father’s PR application. In light of this, I am also not convinced that a writ of mandamus would be of any practical effect.
Balance of Convenience Favours the Respondent
[64] I am of the view that the balance of convenience favours the Respondent. Reviewing the evidence of how CIC carefully manages and coordinates all aspects of immigration to Canada, I am struck by the complexity of the operation. The result of an order of mandamus is inevitably a disruption to the operation of CPC-M and overseas visa offices. An order to process immediately any particular application will result in slower processing of the remaining applications in the queue. This is not a desirable outcome unless other factors for mandamus are compelling.
[65] Further, given that:
- TRVs provide an alternative way for Mr. Hassan Vaziri to be with his son for a significant period of time; and
- the application in issue is likely to be processed in early 2007;
I am not satisfied that the balance of convenience favours the Applicants.
Summary
[66] In sum, the facts do not support the Applicants in respect of the conditions required for a writ of mandamus. The Applicants do not enjoy a clear right to the performance of the requested duty, since there has not been unreasonable delay. There also appears to be an alternative – albeit not perfect – remedy. An order of mandamus would have little practical effect. Finally, the balance of convenience favours the Respondent.
[67] For these reasons, mandamus does not lie in the present circumstances.
Conclusion
[68] In conclusion, I find that:
- the Minister acted lawfully in setting the expected ratio for economic to non-economic immigration, in establishing targets for immigration within described classes and groups of prospective immigrants and in establishing procedures that prioritized the processing of applications;
- while the Governor in Council may make regulations to address all of these matters, there is no obligation on the Governor in Council to do so;
- the existence of a non-mandatory Governor in Council regulation-making power does not preclude the Minister responsible for the administration of IRPA, from taking these policy and administrative decisions.
- the Applicants have not satisfied me that the discretionary remedy of mandamus should be granted.
[69] The parties to this application have jointly submitted two questions for certification.
Question #1
In the absence of the Governor in Council having enacted relevant regulations and given the Minister of Citizenship and Immigration’s responsibility for the administration of IRPA, does the Minister of Citizenship and Immigration have authority to:
(a) set annual target ranges for the total number of immigrants to Canada?
(b) determine how the annual target range will be distributed among the three immigrant classes (economic, refugee and family class)?
(c) distinguish between members of the same class, by processing spouses, partners and children, in priority to parents and grandparents?
Question #2
Given the answers to Question #1, have the Applicants established an entitlement to the discretionary and equitable remedy of mandamus, given all the circumstances of this case?
[70] I agree that these are issues of general importance that are determinative of the questions in this judicial review. Accordingly, I will certify these questions.
ORDER
This Court orders that the application for judicial review is dismissed, with the following questions certified:
1. In the absence of the Governor in Council having enacted relevant Regulations and given the Minister of Citizenship and Immigration’s responsibility for the administration of IRPA, does the Minister of Citizenship and Immigration have authority to:
(a) set annual target ranges for the total number of immigrants to Canada?
(b) determine how the annual target range will be distributed among the three immigrant classes (economic, refugee and family class)?
(c) distinguish between members of the same class, by processing spouses, partners and children, in priority to parents and grandparents?
2. Given the answers to Question #1, have the Applicants established an entitlement to the discretionary and equitable remedy of mandamus, given all the circumstances of this case?
“Judith A. Snider”
_____________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7109-05
STYLE OF CAUSE: HOMAYOUN VAZIRI ET AL v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 5, 2006
APPEARANCES:
Lorne Waldman / Tetyana Tokar FOR THE APPLICANTS
Marie-Louise Wcislo / Rhonda Marquis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lorne Waldman / Tetyana Tokar FOR THE APPLICANTS
Waldman & Associates
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada