Date: 20021004
Docket: IMM-4005-01
Neutral citation: 2002 FCT 1040
Ottawa, Ontario, Friday the 4th day of October 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
JATINDER KAUR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Jatinder Kaur seeks a writ of mandamus requiring the immigration officer having carriage of her application for landing as a Convention refugee to render a decision with respect to that application. The application for landing was made pursuant to section 46.04 of the Immigration Act, R.S.C. 1985, c. I-2 ("Act").
[2] In support of her application for mandamus Ms. Kaur swears that she:
· came to Canada 11 years ago, in 1991;
· was found to be a Convention refugee in 1994;
· applied for landing in 1994;
· passed the required medical exams;
· passed the CSIS clearance on October 11, 2000; and
· has been given no satisfactory explanation as to the delay in the processing of her application for landing.
[3] In response, the Minister argues that Ms. Kaur has not satisfied the requirements for an order in the nature of mandamus.
ANALYSIS
[4] The following criteria must be satisfied before the Court will issue a writ of mandamus:
(a) there must be a public legal duty to act under the circumstances;
(b) the duty must be owed to the applicant;
(c) there must be a clear right to performance of that duty, and in particular the applicant must have satisfied all conditions precedent giving rise to the duty;
(d) no other adequate remedy is available to the applicant;
(e) the order sought must have some practical effect;
(f) in the exercise of its discretion, the Court must find no equitable bar to the relief sought; and,
(g) on a balance of convenience, an order of mandamus should issue.
See: Khalil v. Canada (Secretary of State), [1999] 4 F.C. 661 (C.A.) at paragraph 11.
[5] Each application for mandamus turns upon its own facts. In the present case, the contentious criteria are (c), (f) and (g) as listed by the Court of Appeal in Khalil.
(i) Is there a clear right to performance of the duty, and has Ms. Kaur satisfied all of the conditions precedent giving rise to the duty?
[6] Section 46.04 of the Act at the material time governed applications for landing by persons determined to be Convention refugees. Of particular relevance are subsections 46.04(3) and 46.04(6) which provided:
| 46.03 (3) Notwithstanding any other provision of this Act, but subject to subsections (3.1) and (8), an immigration officer to whom an application is made under subsection (1) shall grant landing to the applicant, and to any dependant for whom landing is sought if the immigration officer is satisfied that neither the applicant nor any of those dependants is a person described in paragraph 19(1)(c.1), (c.2), (d), (e), (f), (g), (j), (k) or (l) or a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of (a) more than six months has been imposed; or (b) five years or more may be imposed.
[...]
(6) An immigration officer to whom an application is made under subsection (1) shall render the decision on the application as soon as possible and shall send a written notice of the decision to the applicant.
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46.03 (3)(3) Malgré les autres dispositions de la présente loi mais sous réserve des paragraphes (3.1) et (8), l'agent d'immigration accorde le droit d'établissement à l'intéressé et aux personnes à sa charge visées par la demande, s'il est convaincu qu'aucun d'entre eux n'est visé à l'un des alinéas 19(1)c.1), c.2), d), e), f), g), j), k) ou l) ou n'a été déclaré coupable d'une infraction prévue par une loi fédérale_: a) soit pour laquelle une peine d'emprisonnement de plus de six mois a été infligée; b) soit passible d'un emprisonnement maximal égal ou supérieur à cinq ans.
[...]
(6) L'agent d'immigration rend sa décision le plus tôt possible et en avise par écrit l'intéressé.
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[7] The significance of these provisions is that an immigration officer to whom an application for landing is made shall, subject to certain sections of the Act, grant landing, and a decision on the application is to be rendered as soon as possible.
[8] As to what is meant by as soon as possible, this Court has in the past held that for a delay in the performance of a statutory obligation to be considered unreasonable, the following requirements must be met:
(i) the delay in question has been longer than the nature of the process required, prima facie;
(ii) neither the applicant nor the applicant's counsel are responsible for the delay; and
(iii) the authority responsible for the delay has not provided satisfactory justification.
See, for example, Mohamed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1677 (T.D.), and, Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33 (T.D.).
[9] Moving to the application of those factors to the present case, while Ms. Kaur initially applied for landing in 1994, her counsel concedes that her application was not perfected until October 2000. Counsel for Ms. Kaur argues that by then Ms. Kaur had passed the medical exams, provided a valid passport and passed the security clearance.
[10] Counsel for the Minister argues that on that factual basis there has been no unreasonable delay in processing the application, that Ms. Kaur has been responsible for some of the subsequent delay in processing the application and that, most importantly, the reason provided for the delay is more than satisfactory.
[11] Dealing with Ms. Kaur's responsibility for any subsequent delay, by letter dated September 28, 2000 Ms. Kaur advised the Minister that she wanted to add her husband, Parmod Verma, to her application for landing. She enclosed their marriage certificate which indicated that she and her husband were married on August 7, 1999. This was problematic, in that on January 8, 2000 in her new application for landing Ms. Kaur had advised the authorities that she had never been married.
[12] Mr. Verma was issued a Departure Order on August 5, 1999, two days before they were married. Mr. Verma was then arrested in September 2000 for violating the Act, and was removed from Canada in January 2001. By letter dated August 14, 2001, Ms. Kaur requested that her husband be removed from her application for landing.
[13] Ms. Kaur did so for the reason then expressed by her counsel that she "believes that including her husband on the application at this time will just add further delay to the process". I accept that any delay from October 2000 to August 14, 2001 was at the least contributed to by Ms. Kaur and the addition of her previously denied husband to the application.
[14] Turning next to the reasons provided on the Minister's behalf for any delay, on September 20, 2000, the Peel Regional Police executed a search warrant at Ms. Kaur's family's home while she was present. In addition to finding stolen credit card data and counterfeit credit cards, the police located 17 Indian passports, 12 Indian immigration stamps and a number of stolen IMM1000 forms. Ms. Kaur's picture was found in three different Indian passports, two of which were in her name, while one was in the name of Gurjinder Kaur. A fourth passport, believed to be the original passport issued to the real Gurjinder Kaur was also found. The passport which bore Ms. Kaur's photograph, but the name of Gurjinder Kaur contained a stamp purporting to have been applied by officials in New Delhi on February 28, 1999. Ms. Kaur's brothers were charged with various fraud offences as a result of evidence found when the search warrant was executed. Ms. Kaur was not charged.
[15] In December 2000, Citizenship and Immigration received information that Ms. Kaur was implicated in a multi-million dollar fraud. Her police and security clearances were therefore required to be re-done.
[16] A Regional Intelligence Officer with Citizenship and Immigration swore in an affidavit in this proceeding that:
2. The recent delay in the processing of the Applicant's application for landing is attributable to the investigation into the involvement of the Applicant and her family in the illegal activities described in the Tribunal Record.
[17] This was the total extent of the evidence provided by the officer in his affidavit, although further information was contained in the tribunal record.
[18] On cross-examination, the officer swore that while the fact that Ms. Kaur was found guilty in April 1998 of theft under, and the fact that she had added her husband to her application had both contributed to the delay in processing her application for landing, the major source of delay was the involvement of her family members in illegal credit card and passport activities. According to the deponent "a key factor in her application is certain passports that are currently in possession of the Brampton Superior Court" which he said he could not access because they were in the possession of the Court as evidence. The passports in question are those seized in September 2000, relating to Ms. Kaur. The officer expressed concern on cross-examination that the passport with Ms. Kaur's photograph but not her name may have been used by Ms. Kaur to travel outside of Canada. This, he said, would destroy the medical exams and the criminality and security checks previously carried out on Ms. Kaur on the basis that she had remained in Canada.
[19] An RCMP forensic report contained in the tribunal record concludes that the passports seized which relate to Ms. Kaur are genuine, unaltered passports. However, one of the stamps seized from Ms. Kaur's family home probably produced the impression found in the current passport which bears the name "Jatinder Kaur". This would suggest that the stamp in the current passport which bears the picture of Jatinder Kaur, but the name Gurjinder Kaur, was authentic as the report did not conclude it was applied by any of the stamps seized from Ms. Kaur's family home. This in turn raises further concerns that Ms. Kaur did travel outside of Canada so that further investigation is reasonably required.
[20] In that circumstance, I have not been satisfied that the delay from August 2001 (when Ms. Kaur withdrew her husband from her application) coupled with the unanswered questions which arise from the current passport which bears Ms. Kaur's photograph, but not her name and which is the subject of an ongoing investigation, are such as to render the delay in processing this application sufficiently unreasonable as to warrant the issuance of a writ of mandamus.
[21] That said, there are aspects of the Minister's position which are troubling. The Minister's representative suggests that until "any fallout" which might occur from Ms. Kaur's brothers' criminal trial has occurred it would be unreasonable to process her application for landing. In circumstances where Ms. Kaur has not been charged in the two years since the events which resulted in the charges against her brothers, waiting for the conclusion of those criminal proceedings may well not be reasonable. In any event, the Court should not be obliged to speculate as to why the outcome of that proceeding should be awaited, and the Minister's evidence does not establish its relevance.
[22] Having found that Ms. Kaur has failed to satisfy the Court that the delay in the performance of the statutory duty has been unreasonable, it is not necessary to consider the existence of any equitable bars or the balance of convenience.
(ii) Costs
[23] The Minister seeks his costs of this proceeding, due to what he refers to as the unique and special circumstances of the application.
[24] I can see no circumstances which warrant an award of costs. The outcome of this proceeding was by no means free of doubt. This negative decision should also not be seen to be any impediment to a future application for mandamus if the applicant is so advised after a further period of delay.
[25] Counsel posed no question for certification and no question is certified.
ORDER
[26] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4005-01
STYLE OF CAUSE: Jatinder Kaur v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 20, 2002
REASONS FOR ORDER
AND ORDER OF: The Honourable Madam Justice Dawson
DATED: October 4, 2002
APPEARANCES:
Mr. Lorne WaldmanFOR THE APPLICANT
Mr. Greg G. GeorgeFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Jackman, Waldman & AssociatesFOR THE APPLICANT
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada