Federal Court Decisions

Date: 20050520

Docket: IMM-9254-04

Citation: 2005 FC 729

Montreal, Quebec, May 20, 2005

PRESENT:    THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER

BETWEEN:

RAHELEH ABDOLKHALEGHI

MAHMOUD ABDOLKHALEGHI

NOUSHIN ELMZADEH

DANIAL ABDOLKHALEGHI

Applicants

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"), for an order mandamus to compel the respondent to render a decision with respect to the sponsorship and permanent residence applications filed by the applicants.

FACTUAL BACKGROUND

[2]                The principal applicant, Raheleh Abdolkhaleghi, resides in Quebec and filed a sponsorship application on behalf of her family members in January 2000; namely, her father, Mahmoud Abdolkhaleghi and his wife, Noushin Elmzadeh, along with her brother Danial Abdolkhaleghi.

[3]                On February 14, 2001, Mahmoud Abdolkhaleghi filed an application for permanent residence in Canada at the Canadian Embassy in Damascus, Syria. His wife and their son were included as dependents in the application. All the required fees and information have been provided.

[4]                Prior to October 15, 2003, the applicants had sent three requests for information concerning their applications, dated July 10, 2002, September 9, 2002 and December 10, 2002. The reply they received stated that their applications were being processed.

[5]                Mahmoud Abdolkhaleghi was interviewed by a visa officer on October 15, 2003.

[6]                Subsequently, the applicants made further requests for information about their applications on October 16, 2003 and February 15, 2004. The reply was that their applications were still pending.

SUBMISSIONS OF THE PARTIES

[7]                The applicants seek an order mandamus essentially requiring the respondent to process their applications without further delay or cost. They contend that they were given a legitimate expectation that their applications would be processed within a certain timeframe, which the respondent has failed to meet, and therefore resulting in a denial of procedural fairness.

[8]                Furthermore, the applicants contend that the conditions precedent for an order mandamus have been met here. The respondent has a legal duty to process their applications in a timely manner and given that they have paid their fees and complied with requests for information, the applicants have a right to expect that this duty will be performed.

[9]                The applicants submit that no other remedy is appropriate or available, and the respondent's delay is clearly unreasonable.

[10]            On the other hand, the respondent's position is that the conditions precedent for an order mandamus have not been satisfied. In particular, the respondent submits that it has never refused to act on the applications in question. Rather, in the present case, security concerns exist, which the Canadian Security and Intelligence Service (CSIS) must address before a visa officer can make a decision with respect to the applications.

[11]            The security checks conducted by CSIS are outside the respondent's control, and essential to the decision whether to grant permanent residency in Canada. Thus any resulting delay is not unreasonable considering the security concerns in this case.

ANALYSIS

[12]            The test for granting mandamus - a discretionary, equitable remedy - is well-defined. In Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742, aff'd [1994] 3 S.C.R. 1100, the Federal Court of Appeal set out the following requirements: there must be a public legal duty to act; the duty must be owed to the applicant; there is a clear right to the performance of the duty; no other adequate remedy is available to the applicant; the order sought is of some practical value or effect; no equitable bar exists; the balance of convenience favours the issues; and, where the duty sought to be enforced is discretionary, consideration must be given to the nature and manner of exercise of the discretion.

[13]            In the vast majority of cases in the immigration context where mandamus is sought, though, the issue of whether to grant mandamus effectively concerns the clear right to the performance of the duty, or more accurately, the reasonableness of the delay during which no such performance has occurred (see for e.g., Debora Bhatnager v. Minister of Employment and Immigration and Secretary of State for External Affairs, [1985] 2 F.C. 315 (T.D.); Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33 (T.D.); Platonov v. Canada (Minister of Citizenship and Immigration) (2000), 192 F.T.R. 260 (F.C.T.D.); Kalachnikov v. Canada (Minister of Citizenship and Immigration) (2003), 236 F.T.R. 142 (F.C.T.D.)).

[14]            The present case is no different: the question is whether the respondent's delay in processing the applicants' claims for permanent residence was unreasonable. In a decision under the former legislation, Conille, supra, I set out the criteria to be met when finding that the delay was unreasonable. These criteria, which have continued to be applied in the context of the new legislation (see Kalachnikov, supra and Hanano v. Canada (Minister of Citizenship and Immigration) (2004), 257 F.T.R. 66 (F.C.)), are threefold:

-      the delay in question has been longer than the nature of the process required, prima facie;

-      the applicant and his counsel are not responsible for the delay; and

-      the authority responsible for the delay has not provided satisfactory justification.

[18]                        This Court has continued to emphasize since Bhatnager, supra that each application for mandamus must turn on its own factual context (see, in particular, Platonov, supra and Mohamed v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 137 (F.C.T.D.)). Still, the jurisprudence provides some guidance in terms of what may constitute unreasonable delay in similar circumstances. When little, if any meaningful explanation is provided to justify the delay, moreover, the jurisprudence becomes more critical in my view, as I will further detail below.

1. Whether the delay was prima facie longer than required

[19]            Whether January 2000 (when the sponsorship application was filed) or February 2001 (when the permanent residence application was filed) is used as the starting point, a period of more than four or five years seems excessive. It is also within the range of previous cases involving permanent residence applications where delays between three and five years were found to be prima facie longer than required (see Platonov, supra, Kalachnikov, supra and Hanano, supra).

[20]            Furthermore, though clearly characterized as a "general timeframe only" subject to change, the evidence shows that the applicants were initially given the impression that their applications would be processed within six to 18 months. This timeframe only serves as an estimate, but it is supportive of the view that the delay in question was prima facie longer than required. In Mohamed, supra, Dawson J. highlighted the existence of an estimated timeframe as well, while also pointing to the lack of explanation for the delay.

[21]            Also, there is no evidence before the Court demonstrating that the workload in Damascus is atypically high, thus possibly necessitating a longer period to determine such applications. Layden-Stevenson J. in Hanano, supra, which involved an application submitted to authorities in Damascus, made note of the absence of such evidence as well.

[22]            In my opinion then, in the present circumstances, the delay in processing the applications in question was prima facie longer than required.

2. Whether the applicants were responsible for the delay

[23]            The evidence does not show that the applicants are in any way implicated in the delay, which has resulted. The applicants have met all of the respondent's requests for information, submitted to medical examinations, attended an interview with a visa officer, and paid the required fees. This is in marked contrast to the circumstances in Singh v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 543 (F.C.T.D.)(QL), where the applicants for permanent residence refused to heed multiple warnings from immigration officials that the information provided was incomplete.

3. Whether the delay was justified

[24]            The respondent contends that the delay in this case is due to an "ongoing" security check investigation by CSIS, and that such security concerns should not be minimized. This Court has, on occasion, been persuaded by this contention (see Kang v. Canada (Minister of Citizenship and Immigration) (2001), 212 F.T.R. 305 (F.C.T.D.); and Chaudhry v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 213 (F.C.T.D.)). The circumstances in those cases were, however, distinguishable from the present ones in my view. In Chaudhry, ibid, the applicant presumably had a greater awareness of the investigation being conducted by CSIS as he was interviewed by CSIS officials on two separate occasions. As well, there was evidence of a backlog of cases contributing to the delay. In Kang, supra, the applicant's refugee status, which had been granted, was in the process of being challenged. Therefore, the application for mandamus was deemed premature.

[25]            More fundamentally, though, the fact of an ongoing investigation by CSIS has not operated as an absolute bar to ordering mandamus. This Court has, rather, seen fit to order mandamus in the face of competing security interests (see Conille, supra, Mohamed, supra, Latrache v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 154 (F.C.T.D.)(QL), and Bouhaik v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 155 (F.C.T.D.)(QL)).

[26]            The issue, it seems to me, requires returning to the basic principle established by Strayer J., as he then was, in Bhatnager, supra: if there is a long delay without adequate explanation, then mandamus can follow. To simply state, in response to the applicants' requests for information as to why their applications are taking so long to process, that a security investigation by CSIS is ongoing is not an adequate explanation. What will constitute an adequate explanation will of course depend on the relative complexity of the security considerations in each case. A blanket statement to the effect that a security check investigation is pending, which is all that was given here, prevents an analysis of the adequacy of the explanation altogether. And security concerns instead appear to be lacking as a result.

[27]            Thus I find that the delay here has not been justified and the three criteria espoused in Conille, supra to determine that the delay was unreasonable have therefore been met.

[28]            Admittedly, for security reasons, immigration authorities may not think it appropriate to disclose or provide more detailed information about why the security checks performed by CSIS are taking so long. In my opinion, though, given that the delay has been shown to be unreasonable in this case, this concern can be addressed in the mandamus order itself by providing the respondent with an opportunity to return to this Court for an extension of time within which to process the applications in question. Lemieux J. made such a provision in his order in Bouhaik, supra. Provided security concerns are demonstrated, the Court could decide to grant such an extension.

[29]            Accordingly, this application for judicial review is allowed. I am not ready to grant solicitor-client costs because there is no evidence of bad faith on the part of the respondent. Nevertheless, because the delay has been unreasonable and unjustified, costs are awarded to the applicants to be assessed in accordance with Column V of Tariff B of the Federal Court Rules, 1998.

ORDER

THIS COURT ORDERS THAT

The respondent make a decision with respect to the applicants' applications for permanent residence in Canada within 30 days of the date of this order unless the respondent brings a motion to this Court with affidavit to extend this period demonstrating why the delay is justified.

[1]                The whole with costs to be assessed in accordance with Column V of Tariff B of the Federal Court Rules, 1998.

    "Danièle Tremblay-Lamer"