Date: 20040804
Docket: IMM-6208-03
Citation: 2004 FC 1060
Ottawa, Ontario, this 4th day of August 2004
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MOUSA SAYYAD DARYA BAKHSH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Applicant, Mousa Sayyad Darya Bakhsh, seeks an order of mandamus pursuant to section 18.1(3)(a) of the Federal Courts Act, R.S.C. 1985, c. F-7, compelling the Respondent to render a decision forthwith with respect to the Applicant's humanitarian and compassionate (H & C) application.
BACKGROUND
[2] The Applicant is a citizen of Iran who came to Canada in April 1997 and made a refugee claim which was refused in October of 1998. Leave to commence an application for leave and for judicial review of this negative decision was refused in April of 1999.
[3] The Applicant filed a Post-Determination Refugee Claimants in Canada Class (PDRCC) application in November of 1998 with submissions in December of 1998. The risk assessment that was to be conducted under the PDRCC was still pending at the time the Applicant commenced this litigation. On September 30, 1999, the Applicant filed an application for permanent residence on humanitarian or compassionate grounds (H & C) that also included a sponsorship undertaking from his son, who is a Canadian citizen. The sponsorship was subsequently modified and the Applicant was eventually sponsored by his daughter, also a Canadian citizen. The Applicant's wife and other daughter, who reside in Iran, were included as dependants in the application.
[4] The Applicant was interviewed by an immigration officer in connection with the H & C application on March 30, 2001. Notwithstanding numerous requests for status updates by the H & C officer, the H & C application was not processed due to a delay in obtaining a risk assessment from the PDRCC officer. Frustrated with the delay, the Applicant commenced the within application on August 12, 2003.
[5] The application was eventually assessed on other H & C grounds without the risk assessment. On November 3, 2003, the H & C officer found sufficient humanitarian or compassionate grounds to exempt the Applicant from the visa requirements under subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27, (IRPA). By letter dated November 3, 2003, the H & C officer advised the Applicant that his request for exemption from the legislative requirements for processing his request for landing within Canada was approved "...for the purpose of processing [his] application.". The letter also advised the Applicant that he and his dependents must meet all the other statutory requirements of the IRPA including medical examinations and security clearances for himself and his wife and daughter in Iran. He would also be requested to attend an interview at which time a final determination on his application would be made. The officer wrote that the interview "...usually occurs about twelve months after the date [his] exemption is approved."
ISSUES
[6] The following issues will be considered in respect to this application for judicial review:
1. Has the Respondent rendered the decision, for which an order of mandamus is being sought, and as a result is the within application moot?
2. If the application for judicial review is not moot, should an order of mandamus issue in the circumstances of this case?
3. Are there special reasons warranting an order for costs?
ANALYSIS
1. Has the Respondent rendered the decision, for which an order of mandamus is being sought, and as a result, is the within application moot?
[7] At the hearing, Counsel for the Respondent appears to have conceded that a final decision on the H & C application has yet to be made by the Respondent. This position is consistent with the practice adopted by the Respondent as reflected in the Respondent's policy manuel. The manuel IP5 in respect to "Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds", at chapter 5.4 provides that, "An application for consideration to remain in Canada on H & C grounds is comprised of two assessments: a H & C assessment; and an assessment of application for permanent residence in Canada." The preamble to chapter 16 of the same guidelines, dealing with the second step of the assessment procedure provides as follows: "After a positive H & C decision, processing of the application for permanent residence begins...." Applying the Respondent's policy in respect to the processing of such applications, it follows that a decision cannot therefore be said to be rendered if only the first step of the assessment is completed. In the instant case the H & C officer completed only the H & C assessment and the second phase of the H & C application, whether the Applicant is admissible and meets all requirements of the Act and Regulations, remains to be determined. A final decision on the H & C application has not been rendered, therefore the application for judicial review seeking mandamus relief is not moot.
2. If the application for judicial review is not moot, should an order of mandamus issue in the circumstances of this case?
[8] In Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), affd [1994] 3 S.C.R. 1100, the Federal Court of Appeal, at pages 766-768, conducted an extensive review of the jurisprudence relating to mandamus and outlined the following conditions that need to be satisfied for the Court to issue a writ of mandamus:
(1) Mandamus - The Principles
Several principal requirements must be satisfied before mandamus will issue. The following general framework finds support in the extant jurisprudence of this Court (see generally O'Grady v. Whyte, [1983] 1 F.C. 719 (C.A.), at pages 722-723, citing Karanos v. Toronto & Gillies, [1948] 3 D.L.R. 294 (Ont. C.A.) at page 297; and Mesinger v. Canada (Minister of Employment and Immigration), [1987] 1 F.C. 59 (T.R.) at page 66.
1. There must be a public legal duty to act: ...
2. The duty must be owed to the applicant:
3. There is a clear right to performance of that duty:
(a) the applicant has satisfied all conditions precedent giving rise to the duty:
(b) there was (I) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.
4. Where the duty sought to be enforced is discretionary, the following rules apply:
(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as "unfair", "oppressive" or demonstrate "flagrant impropriety" or "bad faith";
(b) mandamus is unavailable if the decision-maker's discretion is characterized as being "unqualified", "absolute", "permissive" or "unfettered";
(c) in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to 'irrelevant", considerations;
(d) mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way; and
(e) mandamus is only available when the decision-maker's discretion is "spent"; i.e., the applicant has a vested right to the performance of the duty.
5. No other adequate remedy is available to the applicant:
6. The order sought will be of some practical value or effect:
7. The Court in the exercise of discretion finds no equitable bar to the relief sought:
8. On a "balance of convenience" an order in the nature of mandamus should (or should not) issue.
[9] In this case the Respondent concedes that there is a public duty to act and that the duty is owed to the Applicant. The only contentious issue is whether the delay in performing the statutory duty is unreasonable. An unreasonable delay in rendering a decision is generally considered to be an implied refusal to perform the public legal duty. This Court has held that the following requirements must be met for a delay to be considered unreasonable:
1. The delay is 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. (See Conille v. Canada (MCI), [1999] 2 F.C. 33 (T.D.).)
[10] With respect to the first of the three requirements set out above the Respondent concedes that the delay of almost four years in processing the H & C application is almost twice as long as would normally be the case. There is little doubt that such a delay is longer than the nature of the process requires and, I so find. The Respondent also concedes that the Applicant cannot be faulted for the delay. While the Applicant admits being responsible seven months of the delay, I agree that, otherwise, the evidence clearly supports that the Applicant cannot be faulted for the extensive delay.
[11] The Respondent argues, however, that the delay is justified by reason of the inability of the H & C officer obtaining a risk assessment on a timely basis. No other explanation is offered to explain why the risk assessment took so long to obtain. This cannot be accepted as an explanation for the delay. In the final analysis the Respondent is responsible for all aspects of the process required to render a decision on an H & C application, as defined and understood in the above noted Respondent's public quidelines, and to do so within a reasonable time-frame. If there is no reasonable explanation for the delay in obtaining the risk assessment, and none is given, and fault for the delay lies with those responsible in conducting the risk assessment, responsibility for that fault must ultimately be accepted by the Respondent. It is the Respondent who has the means to correct any administrative shortcomings in the processing of such applications. In consequence, I find that no reasonable justification is offered by the Respondent to explain the delay, that now exceeds four years, in rendering a decision on the H & C application.
[12] Given that the conditions precedent for the granting of an order of mandamus are met I will consequently grant the application for judicial review and issue an order of mandamus.
[13] The Respondent suggested a minimum of six months to be a reasonable time-frame for a decision to be made. Upon considering the position of the parties and the November 3, 2003, letter from the Respondent to the Applicant, wherein it was indicated that a decision would usually occur within twelve months, I am of the view that it would be reasonable to hold the Respondent to this time-frame. I therefore conclude, in the circumstances, that it would be reasonable to require a decision to be made on or before November 3, 2004.
3. Are there special reasons warranting an order for costs?
[14] In judicial review applications in relation to immigration matters there must be special reasons for ordering costs (Federal Court Immigration Rules, 1993, Rule 22). In this case there are special reasons for awarding costs. These are, the long delay and no reasonable explanation for the delay. In the circumstances, I am prepared to award normal party and party costs to be assessed in accord with Column III of Tariff B of the Court's Rules.
[15] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
IT IS HEREBY ORDERED THAT:
1. The application is granted.
2. An order in the nature of mandamus issue requiring the Respondent to process the Applicant's H & C application for permanent residence in Canada in accordance with the law and the Immigration and Refugee Protection Act, and in accordance with the following terms:
(I) The Respondent shall process the Applicant's application for permanent residence in Canada and provide him with a decision with respect to the issuance of permanent residence status on or before November 3, 2004.
(ii) The period for making the said decision shall be subject to a further extension by this Court if the Respondent applies therefor prior the November 3, 2004 and is able to prove that such further time is required due to causes beyond her control.
3. No question of general importance is certified.
4. The Applicant shall have costs on the normal party and party basis to be assessed in accordance with Column III of Tariff B under the Court's Rules.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6208-03
STYLE OF CAUSE: Mousa Sayyad Darya Bakhsh v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 21, 2004
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: August 4, 2004
APPEARANCES BY:
Mr. Douglas Lehrer For the applicant
Ms. Matina Karvellas For the respondent
SOLICITORS OF RECORD:
VanderVennen Lehrer For the applicant
Toronto, Ontario
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Toronto, Ontario