Date: 20010131
Docket: IMM-1073-00
Between:
AMAR LATRACHE
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
A. Introduction
[1] The applicant, a citizen of Algeria, is seeking a writ of mandamus enjoining the respondent to rule on his application for landing filed on July 12, 1996 after a favourable decision of the Refugee Division on February 2, 1996 granting him recognition as a refugee.
[2] For a person who is found to be a refugee, permanent residency in Canada is governed by the provisions of section 46.04 of the Immigration Act (the Act), which, in subsection 46.04(6), provides that the immigration officer shall render his or her decision on the application "as soon as possible and shall send a written notice of the decision to the applicant".
B. The facts
[3] After the filing of the application for landing in Canada by the applicant, the respondent began checking to determine whether the applicant had a criminal record.
[4] The respondent was notified on July 23, 1996 by the Royal Canadian Mounted Police (RCMP) that their check raised no concern. However, on October 15, 1996, the applicant was charged with assault with a weapon and was convicted on June 11, 1997.
[5] As a result of his conviction, the applicant became inadmissible to Canada under section 19 of the Act until he had served his sentence in 1998.
[6] Meanwhile, on December 3, 1996, the respondent was notified by the Canadian Security Intelligence Service (CSIS) that the applicant did not pose any risk to security; this recommendation is valid for only one year.
[7] On March 19, 1997, the respondent asked the applicant for the original of his identify document and a certified copy of the Court's ruling on his charge.
[8] After checking with Paris and Rabat, the respondent, on July 21, 1998, said it was satisfied as to the applicant's identity.
[9] The applicant's security clearance had expired so on January 5, 1999 the respondent asked the CSIS for an update and, for this purpose, the applicant was summoned on November 30, 1999.
[10] Since then, the certified record indicates no activity on the part of the respondent; it is still awaiting the CSIS recommendation.
C. Respondent's perspective
[11] Relying on Khalil v. Canada (Secretary of State), [1999] 4 F.C. 661, the respondent's counsel argues that the delay is not five years but two years since the effect of the applicant's conviction was to interrupt his admissibility to Canada until his sentence had been served, in 1998.
[12] He cites this Court's decisions in Singh v. Canada (M.C.I.) (1998), 47 Imm. L.R. (2d) 83 and Chaudhry v. Canada (M.C.I.) (1998), 157 F.T.R. 213 as support for the propositions that the applicant's conviction warrants a relatively extensive security investigation and that the respondent cannot make a decision without receiving the CSIS report.
D. Analysis
[13] In Khalil, supra, Linden J.A. restated the necessary conditions for granting a writ of mandamus. They are:
[11] mandamus is a discretionary equitable remedy. Before this Court will order a writ of mandamus, the following criteria, as set out by Mr. Justice Robertson in Apotex Inc. v. Canada (Attorney General) must be satisfied:
(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.
[14] In view of sections 9 and 19 of the Act, the applicant could not ask the respondent to grant him landing in Canada before he had served his sentence since not all of the preconditions were present.
[15] However, in the case at bar the applicant is not seeking mandamus for the granting of his permanent residence status, as the applicant was in Khalil; what he is asking is that the respondent make a decision.
[16] The respondent asked that I disregard the period between 1996 and 1998, in an effort to persuade me that there is no unreasonable delay in the processing of the applicant's file.
[17] In my opinion, the calculation for the purpose of determining the reasonableness of the delay should begin from the date when the application for permanent residence was filed by the applicant, notwithstanding his conviction in 1997.
[18] The facts on file show that the respondent pursued its investigation during the 1996-98 period and that significant checks were conducted in Paris and Rabat in this context.
[19] The Singh and Chaudhry decisions, supra, are not applicable in this case. In those two cases, the respondent had received the CSIS report, which is not the case here.
[20] I conclude that the delay incurred in processing the applicant's application for landing is unreasonable in the circumstances. I am especially concerned about the inactivity for two years on the part of the CSIS and the lack of any explanation to the Court in this regard.
[21] As I said in Bouhaik v. The Minister of Citizenship and Immigration (IMM-1074-00, January 31, 2001), a writ of mandamus is a targeted remedy for the purpose of guaranteeing that a public authority does its duty.
[22] In Bouhaik, supra, I subscribed to the need for flexibility that Mr. Justice Strayer held was necessary in Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315, at p. 317.
[23] Furthermore, in this case I see no special reason under section 22 of the Federal Court Immigration Rules that would enable me to grant the applicant costs on a solicitor-client basis.
Order
[24] The application for judicial review is allowed without costs. The respondent shall render a decision on the applicant's application for permanent residence by June 30, 2001, unless an extension is granted by this Court on a motion of the respondent supported by an affidavit justifying the extension. No question is certified.
François Lemieux
J.
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
DOCKET NO: IMM-1073-00
STYLE: Amar Latrache v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 16, 2001
REASONS FOR ORDER OF LEMIEUX J.
DATED: January 31, 2001
APPEARANCES:
Joan Manafa FOR THE APPLICANT
Ian Hicks FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joan Manafa FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada