Toronto, Ontario, April 28, 2006
PRESENT: The Honourable Mr. Justice Strayer
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for a mandamus to require the respondents to grant the applicant permanent residence in Canada.
[2] The applicant was born in Iran in 1959. He went to India in 1981 to study. From 1981 to 1983 he was a member of the Muslim Iranian Student Society (MISS). In 1984 he came to Canada and claimed refugee status which was granted to him in 1986. He then applied for permanent residence. There then ensued many interviews, security checks, etc. without any decision being taken on his application. In 1998 the respondents' officers raised some concerns of a security nature. He thereupon made an application for Ministerial Relief under what would now be subsection 34(2) of the Immigration and Refugee Protection Act which would have the effect of relieving him from possible inadmissibility that might otherwise be a bar to a grant of permanent residence. That was nearly eight years ago and no decision has been taken on that application for Ministerial Relief either. The applicant in his material asked the Court to make the order which the respondents should have made, namely to grant him permanent residence. I am satisfied that I cannot do that because the power to grant permanent residence is given under subsection 21(1) to an officer. All that I can require is that a decision in fact be made because the Act clearly contemplates that such applications are to be disposed of. Consistent with his position that the Court could address the merits of the permanent residence application, counsel complained that the tribunal had not complied with Rule 17 of the Federal Court Immigration Rules and had not provided the Court with a complete record. Indeed, it was apparent, and conceded by the respondents, that the record provided was not complete. In some of the documents provided there was a good deal of blacked-out material. Counsel for the applicant in further filings made shortly before the hearing date called on the Court to issue a show cause order against the tribunal for its failure to produce the complete record. I declined to deal with this matter, making it clear that in my view I could not decide on the merits of the application for permanent residence, but only could require by mandamus that a decision positive or negative be made. That being the case I only required evidence before me to show, if such were the case, that there had been undue delay without reasonable explanation.
[3] In my view, the material amply demonstrated this. The respondents did not file any evidence to explain the delay and in their written submissions suggested only two outstanding concerns. One was that the applicant had been a member of the MISS from 1981 to 1983 in India. There was a suggestion that MISS had some connection with a terrorist organisation but there is no suggestion that the applicant was implicated in such activities nor was there any suggestion that he has had any association with MISS in the twenty three years since he left India. Further, it was said that there was "some evidence that the applicant had travelled outside of Canada to Iraq in late 1986/ early 1987". It was said that the applicant was unable to provide independent evidence of his whereabouts at that time. But the respondents have produced neither to me nor to the applicant any hard evidence on record to this effect, their information apparently being based on a tip from some unnamed informant. While I am not in a position to evaluate these concerns, I think I can legitimately form an opinion that after all of these years the respondents have had ample opportunity to investigate and evaluate and that their failure to decide amounts to unreasonable delay tantamount to a refusal to act. For that reason, it is open to the Court to require that a decision be made.
[4] Literally on the eve of the hearing of this matter, the respondents made an offer to settle. They were prepared not to oppose the mandamus but to agree to an order which would set out time limits for progressive steps leading to an ultimate decision being made. Their proposal contemplated steps totalling some two hundred and forty days and did not set out any limit as to how long the Minister of Public Security and Emergency Preparedness might take to decide the application for Ministerial Relief - the application first made in 1998. The applicant found this proposal unacceptable as do I. While the applicant instead asked the Court to order a final decision on permanent residence within 30 days, I recognise that, rightly or wrongly, there are several steps that have to be taken by different agencies before this can be done. I am not going to indulge in timetables for each of these but will simply direct that the decision on permanent residence be made on or before August 1, 2006. The respondents and their officials, and the agencies they must be supported by, will simply have to focus their respective minds on ensuring that the order of this Court is obeyed by a decision on permanent residence being issued on or before August 1, 2006.
[5] The applicant requested that costs be awarded in his favour in the amount of $7500. By Rule 22 of the Federal Court Immigration and Refugee Protection Rules, of course, no costs are to be awarded "unless the Court for special reasons, so orders". I find there to be special reasons in this case. We are here dealing with a failure by the respondents to take a decision which was requested almost twenty years ago. Their position most recently has been that such decision cannot be taken until they have disposed of the application for Ministerial Relief, which itself was submitted almost eight years ago. The applicant has endured interview after interview and has required a good deal of legal advice. He has been forced to bring the respondents to Court. Even when faced with this matter being set down for hearing the respondents waited until the afternoon of the day before the hearing to offer a settlement. I am setting the costs at $4000.
[6] The applicant's counsel asked that the Order somehow keep the Court "seized" of this matter, mainly so that if the scope of production of the record to the Court should later become an issue he could come back for further direction without commencing a new proceeding. On reflection, I do not think this is appropriate. What Rule 17 of the Federal Court Immigration and Refugee Protection Rules requires is that the tribunal produce "all papers relevant to the matter" involved in a judicial review for which leave has been given. For the purpose of the present proceeding the record was adequate to satisfy me that there had been unjustified delay and a judgment will be made on that basis. The proper content of the record to be produced is no longer an issue for determination called for by the present application for judicial review.
JUDGMENT
THIS COURT ADJUDGES that
1. The style of cause be amended by adding the Minister of Public Safety and Emergency Preparedness as a respondent;
2. The respondents take such necessary action so that a decision is made on or before August 1, 2006 in respect of the applicant's application for permanent residence first made in 1986;
3. The respondents pay the applicant costs in the amount of $4000.00.
"Barry Strayer"
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4943-05
STYLE OF CAUSE: JOHN DOE v.
MCI and MPSEP
DATE OF HEARING: April 26, 2006
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT
AND JUDGMENT BY: Strayer D.J.
DATED: April 27, 2006
APPEARANCES BY:
Mr. Raoul Boulakia For the Applicant
Mr. Michael Butterfield
Ms. Marianne Zoric For the Respondents
SOLICITORS OF RECORD:
Raoul Boulakia
Toronto, ON For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the RespondentS