Date: 20000912
Docket: IMM-4446-99
OTTAWA, Ontario, this 12th day of September, 2000
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
ALEXANDRE PLATONOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
UPON application by the applicant for judicial review and for an order in the nature of mandamus to the respondent Minister directing that a visa officer at the Canadian Embassy in Warsaw, Poland, complete processing of the applicant's application for permanent residence in accordance with the Immigration Act and Regulations, within ninety days;
UPON hearing counsel for the parties in Toronto on August 22, 2000, counsel were invited to consider whether they could agree on a reasonable time for a decision to be made on the outstanding application of the applicant, and upon other aspects of relief requested by the applicant when the matter was heard;
UPON counsel subsequently advising they had agreed on terms of a draft order as set out in clause 1 of the order that follows, concerning a time limit for determining the application for permanent residence, but advising they were not agreed on matters of costs or other relief requested by the applicant;
UPON the Court determining the unresolved issues;
O R D E R
IT IS HEREBY ORDERED THAT:
| 1. The respondent be, and is, ordered to process the applicant's application for permanent residence in Canada in accordance with the law and the Immigration Act, and in accord with the following terms: |
| i) the applicant and his wife shall attend a designated medical practitioner (DMP) within ten working days or earlier from the date of this order; |
| ii) 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 December 8, 2000 subject to clause iii) hereafter; |
| iii) in the event the DMP requires further testing to complete the applicant's medical evaluation, finalizing of the applicant's application for permanent residence in Canada if necessary to complete medical tests, shall be extended past December 8, 2000, but the application shall be processed not later than twenty-one days following receipt of the final medical clearance, on or after December 8, 2000, by the Canadian Embassy in Warsaw from Immigration Health Services. |
| 2. The applicant shall have costs on the normal party and party basis, as counsel may agree, or as may be assessed in accord with Column III of Tariff B under the Court's Rules. |
(signed) W. Andrew MacKay
JUDGE
Date: 20000912
Docket: IMM-4446-99
BETWEEN:
ALEXANDRE PLATONOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application for an order in the nature of mandamus, and for related declarations, that the visa officer at the Canadian Embassy in Warsaw, Poland, complete processing of the applicant's application for permanent residence in accordance with the Immigration Act and Regulations, within 90 days. The applicant also seeks costs of this proceeding, and, depending upon the outcome, restoration of some out-of-pocket expenses incurred by the applicant in the delayed process of considering his application.
[2] The facts are relatively simple. The applicant made application for permanent residence in Canada under the Investor Immigration Program. The application was submitted at the Buffalo Consulate Office in the United States and was forwarded at the applicant's request to the Embassy in Warsaw in the spring of 1997. Acknowledgement of its receipt there was included in a letter of April 9, 1997, which also advised the applicant that applications in the category in which he sought admission, as a member of the investor group, took an average of some eleven months for processing at the Warsaw office, and that it might take longer if the applicant and his family were not resident in the area normally served by Warsaw.
[3] In July 1997, the applicant was interviewed in Warsaw, and on July 28, 1997 the Embassy wrote to advise him that:
| I am pleased to advise that your case has been provisionally approved. Therefore you and your wife are now requested to undergo medical examinations with a medical practitioner designated by our office... It is possible that we will schedule another interview for you to clarify certain aspects of your background. In the meantime you should provide a copy of your agreement with the specific investment fund in Ontario that your legal representative recommends. Before we will be able to issue visas to you, you will also have to prove that you have deposited the full amount of money as per your agreement in this fund. |
Medical examinations were completed, and a copy of the investment agreement was forwarded as requested. By December 1997, $79,000.00 had been deposited by the applicant in an investor fund, as a deposit toward $350,000.00, which he had pledged to invest if admitted to Canada for permanent residence.
[4] In September 1997, the Embassy in Warsaw advised counsel for the applicant that the medical reports concerning the applicant and his wife had been received. In March 1998, the applicant was called in for a second interview scheduled for April 23, 1998, which he attended. In July 1998, the Embassy in Warsaw requested specific information from his counsel in relation to certain of the applicant's business relations. That information was provided by letter dated July 20, 1998. In September and October 1998, counsel for the applicant informed the Embassy that the applicant was ready to attend a third interview if that would assist, but that suggestion was declined, pending background checks concerning the applicant, which were said to be ongoing.
[5] In December 1998, immigration authorities advised counsel that they were still in the process of gathering information concerning the applicant. In March and June of 1999, counsel made further inquiries of the Embassy in Warsaw which advised that officers could not indicate when they would be able to decide on the applicant's application.
[6] In September 1999, the applicant filed this application for judicial review, seeking an order in the nature of mandamus, and with his application was filed an affidavit setting out the basic facts. In more than eleven months since this application was filed, the applicant has had no further indication of when a decision may be made. The only advice forthcoming has been that security checks were not completed.
[7] Counsel for the applicant relied upon Bhatnager v. Minister of Employment and Immigration et al., [1985] 2 F.C. 315 (T.D.); Dee v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1767 (T.D.) and Conille v.Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33 (T.D.). In Bhatnager, Mr. Justice Strayer, as he then was, ordered that a decision be made, within some 2 [frac12] months of the order, in relation to an application to sponsor the applicant's husband for admission to Canada as a permanent resident, where delay in processing the application was 4 [frac12] years without reasonable explanation. In Dee, Mr. Justice Muldoon ordered that a decision be made, within three months of the order, in relation to an application for landing where no decision had been made in more than four years, without reasonable explanation, and despite repeated assurances that a decision would be made in the near future. In Conille, Madam Justice Tremblay-Lamer dealt with an application for mandamus to have a decision made in regard to an application for citizenship made more than four years before the hearing, a time apparently taken on the basis that security checks by CSIS were incomplete. She ordered that the Registrar of Citizenship inform CSIS that unless there be justification shown within a time fixed by the Registrar for continuing its investigation, that investigation would be considered closed and the application should be forwarded to a citizenship judge for reconsideration.
[8] Counsel for the respondent sought to distinguish these cases on the ground that investigations in each of them was concerned with the background of the individual concerned, whereas in this case investigation required review of the background of certain corporations and individuals with whom the applicant had previous business contacts. It was urged this basis of investigation was known to the applicant in this case from the time of his first interview in Warsaw when some questions arose about his business associations after he had revealed them. The nature of that investigation was said to be further confirmed by questions asked in July of 1988, which I note again the applicant then answered.
[9] I am not persuaded to distinguish the cases on which the applicant relies solely on the basis suggested by counsel for the respondent, nor am I persuaded that the decision of then Associate Chief Justice Jerome in Lee v. Canada (Secretary of State), (1987), 4 Imm.L.R. (2d) 97, 16 F.T.R. 314 (F.C.T.D.) should be followed in this case. In that case, the Court refused to grant an order in the nature of mandamus where an application for citizenship was outstanding for one year and one half pending completion of security checks. In the circumstances of that case, Jerome A.C.J. found that the Registrar of Citizenship was acting, at that stage, in accord with his duty under the Act.
[10] Each case turns upon its own facts, and I am not persuaded that the jurisprudence in relation to this matter is particularly helpful, except to outline some parameters within which the Court has issued an order in the nature of mandamus where it has found there has been unusual delay which is not reasonably explained. In this case, counsel agree that the Minister has an obligation to make a decision in respect of the applicant's application for permanent residence. The only issue is whether that decision may be delayed further without any more explanation than that offered thus far, i.e., that necessary security checks are under way. In the applicant's case that has been the only explanation offered in more than three years since he was interviewed and his application provisionally accepted by the Embassy in Warsaw.
[11] At the conclusion of the hearing, I requested counsel to consult to determine whether or not they could agree upon a reasonable time for a decision to be made, a time that might be included in any order, if that is determined to be appropriate, and about other matters of relief, and costs of this hearing, raised by the applicant for consideration.
[12] Counsel having subsequently advised that they agreed on the terms of an order providing for the processing of the applicant's outstanding application for permanent residence to be completed within some ninety days of the date of an order in accord with the law and the Immigration Act, and including provision for any necessary medical re-examination of the applicant, subject only to an extension of time if additional necessary medical tests are not completed by December 8, 2000. In the latter event the decision shall be made within 21 days of receipt at the Embassy in Warsaw of completed medical reports submitted on or after December 8, 2000.
[13] Counsel were unable to agree on costs or on other forms of relief requested by the applicant at the time of the hearing. For the applicant counsel requests costs and that those be fixed at the sum of $5,500.00 Counsel for the respondent objects to costs being awarded and suggests that if the Court were to award them, the sum of $500.00 would be more appropriate, since delay here resulted solely from the necessity to complete security checks concerning the applicant. Moreover, it is urged that the application involved no great complexity, and the matter has ultimately been resolved.
[14] In judicial review in relation to immigration matters the Court does not award costs unless the Court, for special reasons so orders (Federal Court Immigration Rules, R. 22). In this case, in my view, there are special reasons for the award of costs. Those are the long delay, without reasonable explanation except that security checks were underway, long after the applicant had been advised his application for permanent residence was accepted on a provisional basis. Happily the parties have agreed upon a reasonable time within which this matter will be dealt with by the respondent but, in my view, that ought to have been possible without this proceeding. In the circumstances I am prepared to award costs to the applicant but I believe that those should reflect normal party and party costs. If the parties cannot agree on a reasonable sum for costs, they shall be assessed in accord with Column III of tariff B of the Court's Rules.
[15] The applicant also seeks reimbursement of out-of-pocket expenses that he has incurred in the delayed process of dealing with his application. The first is a request, in the event that the application is refused ultimately, that the Court order that the amount of $23,266.00(CAN), said to be the amount of loss from investment of $79,000.00 (CAN) in the Immigrant Investor Fund, should be paid by the respondent. The second request is for $620.00(CAN), the costs of further medical examinations for the applicant and his wife, expected to be required since the limited time has expired for validity of the medical reports of 1997, completed after provisional acceptance of his application on advice of the visa office in Warsaw.
[16] For the respondent, counsel objects to an order providing for payment of either of these sums which, it is suggested, are in the nature of damages alleged and not costs of this proceeding. I am persuaded that is the nature of these requests. The Court will not award as an item of costs, either of the sums requested. This is not an action for damages.
[17] Nevertheless, if the application for permanent residence is ultimately refused the respondent is encouraged to consider the matter of repayment of monies deposited in the Immigrant Investor Fund by the applicant, as encouraged by the respondent's department, together with a sum in lieu of interest that would have been earned on the funds deposited. Arrangements of the nature suggested would, in the circumstances of this case, be fair, in my opinion.
Conclusion
[18] An order goes directing that the respondent process the applicant's application for permanent residence in Canada in accordance with the law and the Immigration Act and terms upon which the parties have agreed, as are set out in the order. The order also provides for costs to the applicant on a party and party basis as counsel for the parties may agree, or failing agreement, as may be assessed in accord with Column III of Tariff B of the Court's Rules.
(signed) W. Andrew MacKay
_____________________________
JUDGE
OTTAWA, Ontario
September 12, 2000