Date: 20010131
Docket: IMM-1074-00
OTTAWA, ONTARIO, JANUARY 31, 2001
BEFORE: LEMIEUX J.
BETWEEN:
M'HAMED CHERIF BOUHAIK
Plaintiff
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
The application for judicial review is allowed without costs. The defendant shall render a decision on the plaintiff's application for landing before June 30, 2001 unless an extension is ordered by this Court on a motion by the defendant supported by an affidavit justifying the extension. No question is certified.
François Lemieux
Judge
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010131
Docket: IMM-1074-00
Between:
M'HAMED CHERIF BOUHAIK
Plaintiff
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
LEMIEUX J.
(A) Introduction
[1] This is a motion for an order of mandamus filed by the plaintiff, a national of Algeria, to compel the defendant to make a decision on his application for landing made on June 13, 1995, pursuant to s. 46.04 of the Immigration Act ("the Act"), after his recognition as a refugee.
[2] Section 46.04(6) of the Act provides that "An immigration officer to whom an application is made under subsection (1) shall render the decision as soon as possible and shall send a written notice of the decision to the applicant".
(B) Facts
[3] When the plaintiff entered Canada in January 1994 holding a forged French passport he said he had been a member of the Front Islamique du Salut (FIS) since 1989.
[4] At that time the plaintiff unsuccessfully applied for ineligibility* on the ground that, under s. 19(1)(f)(iii)(B) of the Act, he was a member of an organization that is or was engaged in acts of terrorism.
[5] Further, in its decision of April 4, 1995 allowing his claim as a refugee the Refugee Division considered that he did not come within the exceptions mentioned in art. 1F(a) of the Convention.
[6] The certified record indicated a concern by the defendant with the plaintiff's real identity; the defendant also wanted to investigate more thoroughly the security implications of his permanent residence application. To this end, the plaintiff was summoned by the Canadian Security Information Service (CSIS) twice (in July 1996 and November 1999).
[7] The certified record indicated that in 1998 the defendant requested further clarification about his identity from the plaintiff and that the responsible immigration officer noted in June 1999 that the latest update by CSIS dated from 1998 and that a decision was expected within six to 12 months which was not the case. The defendant has still had no reply from CSIS and the Court has been offered no explanation of the problems involved in the latter's investigation.
(C) Issue
[8] The issue is whether in the circumstances the delay that occurred in processing the plaintiff's application for landing is unreasonable.
(D) Analysis
[9] I accept the defendant's arguments that reviewing the plaintiff's case is complicated and that some caution is required. In security matters, the Court should not issue a mandamus order that would lead to an aborted or abbreviated investigation.
[10] However, in view of the legislative provision directing the defendant to make a decision as soon as possible, the Court cannot approve a lack of diligence by the defendant and allow the case to drag on without tangible progress, as indicated by the evidence in the case at bar. In suitable cases a mandamus order is a proper remedy to ensure that the government will perform its duties, namely in the case at bar to make a decision as soon as possible.
[11] I adopt the observations of Strayer J., as he then was, in Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315, at 317:
The decision to be taken by a visa officer pursuant to section 6 of the Regulations with respect to issuing an immigrant visa to a sponsored member of the family class is an administrative one and the Court cannot direct what that decision should be. But mandamus can issue to require that some decision be made. Normally this would arise where there has been a specific refusal to make the decision, but it may also happen where there has been a long delay in the making of a decision without adequate explanation. I believe that to be the case here. The respondents have in the evidence submitted on their behalf suggested a number of general problems which they experience in processing these applications, particularly in New Delhi but they have not provided any precise explanation for the long delays in this case. While I would not presume to fix any uniform length of time as being the limit of what is reasonable, I am satisfied on the basis of the limited information which I have before me that a delay of 4½ years from the time the renewed application is made is unreasonable and on its face amounts to a failure to make a decision.
[12] I consider that the circumstances now before the Court are the same as Strayer J. had before him in Bhatnager.
[13] The mandamus order made by Strayer J. in Bhatnager was flexible and did not set any cutoff date tied to the cooperation of other individuals on whom the defendant depended. He said the following:
I will therefore issue an order in the nature of mandamus to require that a decision be made. Recognizing that some of the remaining necessary steps may involve the assistance or cooperation of others I will not require that the decision be finalized until December 31, 1985 and I will also make that deadline subject to the possibility of the respondents applying in the meantime for an extension if they can show that compliance is impossible for reasons beyond their control.
[14] I feel that this flexibility is necessary in the case at bar as both parties submitted that a decision would be rendered within six months if an order in the nature of mandamus was made.
[15] The plaintiff would like to have his costs awarded on a solicitor and client basis. However, s. 22 of the Federal Court Immigration Rules, 1993 provides that no costs shall be awarded to or payable by any party in respect of an application under those Rules unless the Court, for special reasons, so orders. I see no special reason in the record to justify awarding costs on a solicitor and client basis.
Disposition
[16] The application for judicial review is allowed without costs. The defendant shall render a decision on the plaintiff's application for landing before June 30, 2001 unless an extension is ordered by this Court on a motion by the defendant supported by an affidavit justifying the extension. No question is certified.
François Lemieux
Judge
Ottawa, Ontario
January 31, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1074-00
STYLE OF CAUSE: M'HAMED CHERIF BOUHAIK
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 16, 2001
REASONS FOR ORDER BY: LEMIEUX J.
DATED: JANUARY 31, 2001
APPEARANCES:
JOAN MANAFA FOR THE APPLICANT
DAVID TYNDALE FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOAN MANAFA FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
* French reads "Le demandeur recherche à cette époque, mais sans succès, son inadmissibilité"? - TR.