Ottawa, Ontario, October 26, 2006
Present: The Honourable Mr. Justice Shore
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] [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, 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.
(Khalil v. Canada (Secretary of State), [1999] F.C.J. No. 1093 (QL), at paragraph 11, which restated the criteria set out by this Court in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742, [1993] F.C.J. No. 1098 (QL)).
NATURE OF THE LEGAL PROCEEDING
[2] This is an application by the applicant for mandamus compelling Citizenship and Immigration Canada (CIC) to make a decision on his request for exemption from the permanent resident visa requirement in the “Humanitarian and Compassionate Considerations Class” and the “Spouse or Common-Law Partner in Canada Class.”
FACTS
[3] The applicant, Mr. Khalid Laabou, is 32 years old and a citizen of Morocco. He arrived in Canada in November 2003. On December 1, 2003, he applied for refugee status, which was denied by the Refugee Protection Division of the Immigration and Refugee Board on May 26, 2004. The Federal Court dismissed the applicant’s application for leave and judicial review of the decision.
[4] On March 7, 2004, Mr. Laabou married Ms. Hayat El Mouda, who is a permanent resident of Canada. Their son was born on June 6, 2005.
[5] On July 5, 2004, Mr. Laabou submitted a request for exemption from the permanent resident visa requirement in the “Humanitarian and Compassionate Considerations Class” (APR for Humanitarian Considerations (HC)), together with an application to sponsor and undertaking signed by his wife.
[6] According to Mr. Laabou, he was informed in July 2005 that his request would be processed in the prescribed class of spouse or common-law partner in Canada under the new departmental policy of February 2005; Mr. Laabou’s wife signed a new sponsorship application to that effect. Based on that, Mr. Laabou signed a form indicating he would not apply for a Pre-Removal Risk Assessment (PRRA).
[7] On July 25, 2005, his APR based on humanitarian considerations was processed, a new sponsorship undertaking was signed, and a selection certificate was issued to him. No fee was required or paid for this application, since it was not a new APR but a review of the one filed in July 2004.
[8] On October 13, 2005, Mr. Laabou’s wife left the matrimonial home with their child, and did not indicate where she was going. Her reasons for doing so were blocked out in the panel record. Mr. Laabou states that he had to file a complaint with the police to find his son; they located the child on November 4, 2005, but could not provide the applicant with the new address.
[9] A little more than a month later, Mr. Laabou filed a motion for separation from bed and board before the Québec Superior Court, but it appears that the motion has not been heard. Mr. Laabou and his wife have not cohabited since then.
[10] The Minister submits that on October 14, 2005, the applicant’s wife sent a written request to CIC to withdraw her sponsorship. Mr. Laabou claims that he was never informed of his wife’s request or the reasons for it. He also states that he never had the opportunity to present his arguments opposing this request.
[11] The Minister states that the request to withdraw the sponsorship was accepted by CIC, since no final decision had yet been made on the applicant’s APR. Mr. Laabou denies this.
[12] Given that the sponsorship undertaking has been withdrawn, the Minister contends that the applicant no longer meets the requirements of the public policy on spouses, and therefore his APR cannot be assessed on the basis of the spouse or common-law partner in Canada class. Mr. Laabou’s application must accordingly be assessed on the basis of the general HC provisions in the IP 5 Manual. Mr. Laabou disputes this.
[13] Mr. Laabou’s wife did not attend the meeting with CIC on October 26, 2005, to finalize the sponsorship matter.
[14] Mr. Laabou submits that he was informed on November 1, 2005, that his application for permanent residence had not been refused, but had been transferred to the PRRA to assess the humanitarian grounds and the risks of removal.
[15] The Minister argues that the sponsorship application filed by Mr. Laabou’s wife had been withdrawn, and that Mr. Laabou was informed of this on November 22, 2005.
[16] On December 14, 2005, the PRRA Officer assessed Mr. Laabou’s application in accordance with general procedures; he had to determine whether Mr. Laabou would encounter unusual and undeserved or disproportionate hardship by having to obtain a permanent resident visa on humanitarian and compassionate grounds from outside Canada. This application was rejected.
[17] Accordingly, Mr. Laabou is asking the Court to order CIC to make a decision on his application for permanent residence in the spouse or common-law partner in Canada class, essentially confirming that the sponsorship withdrawal is invalid.
[18] Mr. Laabou contends that failing to make a decision on his application is a breach of procedural fairness and legitimate expectation, since his wife’s sponsorship is still valid and, therefore, his application can be accepted.
ISSUE
[19] Have the conditions precedent for a writ of mandamus been met?
[20] In the view of the Court, Mr. Laabou has not satisfied the necessary requirements for a writ of mandamus, because he does not meet one of the essential conditions for admission as a permanent resident in the spouse or common-law partner in Canada class, and the issues raised by this application are moot.
The conditions precedent for a writ of mandamus
[21] A writ of mandamus is an extraordinary remedy that only applies in limited circumstances.
[22] The conditions precedent for a writ of mandamus have been identified in the case law, and are clearly delineated by the Federal Court of Appeal in Khalil, above, which restated the criteria set out by the same Court in Apotex, below:
[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, 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.
(a) Conditions precedent giving rise to a public legal duty to act under the circumstances
[23] Mr. Laabou submits that, since the sponsorship is still valid, CIC has a legal duty to decide whether the applicant falls within the spouse or common-law partner in Canada class.
[24] To better respond to this allegation, the Court will first situate this case in its legislative context, and then review the criteria that bar Mr. Laabou’s application for mandamus.
(i) The regulatory scheme governing sponsored applications for permanent residence
[25] Under subsection 13(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.-27 (Act), “[a] Canadian citizen or permanent resident may, subject to the regulations, sponsor a foreign national who is a member of the family class.” This class is established “on the basis of the [foreign national’s] relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.” (subsection 12(1) of the Act). A sponsored application for permanent residence is, therefore, a two-pronged process: the application for residence and the sponsorship application.
[26] Under section 10 of the Canada-Québec Accord Relating to Immigration and Temporary Admission of Aliens and section 13 of the Act, the Governor in Council has prescribed three classes of foreign nationals who may apply for permanent residence in Canada without submitting a visa application before entering Canada (subsection 11(1) of the Act): (1) the live-in caregiver class; (2) the spouse or common-law partner in Canada class; and (3) the protected temporary residents class. Only the second one is relevant in this proceeding.
[27] Section 124 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), imposes three conditions on applicants applying for permanent residence in this class: (1) they are the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada; (2) they have temporary resident status in Canada; and (3) they are the subject of a sponsorship application. Failure to meet one of these conditions is fatal to the applicant’s application for permanent residence.
(ii) The conditions for sponsored permanent residence that bar Mr. Laabou’s application for mandamus
[28] In this case, the applicant’s wife sent a written request to withdraw her sponsorship, which was accepted by CIC on October 14, 2005. Mr. Laabou was informed of this withdrawal on Nov. 22, 2005. Thus, it appears that the sponsorship withdrawal is valid, and that Mr. Laabou does not meet the third condition in section 124 of the Regulations.
[29] It is not clear from the evidence that the applicant was informed that his wife had withdrawn her sponsorship; however, Mr. Laabou’s admission that he no longer lives with his wife is a bar to his application for permanent residence in the spouse or common-law partner in Canada class.
[30] Subsection 124(a) of the Regulations provides:
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124. A foreign national is a member of the spouse or common-law partner in Canada class if they
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124. Fait partie de la catégorie des époux ou conjoints de fait au Canada l’étranger qui remplit les conditions suivantes:
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(a) are the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada;
. . . |
a) il est l’époux ou le conjoint de fait d’un répondant et vit avec ce répondant au Canada;
[…] |
[31] Whether the spouses intend to live together is irrelevant to the applicable criterion, as is the fact that Mr. Laabou was not the one to leave the matrimonial home. In any event, Mr. Laabou’s motion for a separation of bed and board demonstrates that he no longer intended to cohabit with his wife.
[32] By seeking to be relieved of that obligation, Mr. Laabou clearly indicated that he no longer satisfied one of the essential conditions for permanent residence in the spouse or common-law partner in Canada class. Therefore, he cannot become a permanent resident in Canada under paragraph 72(1)(d) of the Regulations:
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72. (1) A foreign national in Canada becomes a permanent resident if, following an examination, it is established that
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72. (1) L’étranger au Canada devient résident permanent si, à l’issue d’un contrôle, les éléments suivants sont établis:
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. . .
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[…]
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(d) they meet the selection criteria and other requirements applicable to that class;
. . . |
d) il satisfait aux critères de sélection et autres exigences applicables à cette catégorie;
[…] |
[33] Accordingly, Mr. Laabou is not entitled to the relief sought and, therefore, does not meet the criteria for a writ of mandamus, in particular, the requirement of satisfying all conditions precedent giving rise to a public legal duty (Apotex, above). For the same reasons, the balance of convenience does not favour Mr. Laabou, and the circumstances do not warrant the issuance of a writ of mandamus.
(b) The issues raised in the application are moot
[34] In addition to the foregoing, it is unnecessary for the Court to rule on the validity of the sponsorship withdrawal, if this issue directly concerns Mr. Laabou: the undertaking is a contract, a juridical act driven by the will of the parties, signed in favour of the State and not the applicant, but for the benefit of the foreign national (sections 131 and 137 of the Regulations; section 42 of the Regulation respecting the selection of foreign nationals, An Act respecting immigration to Québec, (R.S.Q. c. 1-02, s. 3.3); R.R.Q. 1981, c. M-23.1, r. 2; S.Q. 1994, c. 15, s. 12. ; Québec (Attorney General) v. Kechichian, [2000] R.J.Q. 1730, [2000] J.Q. No. 2049 (QL), paragraphs 14 to 27.)
[35] Moreover, the undertaking has lapsed. Although the undertaking binds a sponsor from the date on which it is signed by an immigration officer (section 46.1 of the Regulation respecting the selection of foreign nationals), it only takes effect when the foreign national becomes a permanent resident (idem, section 46.2). If the foreign national does not obtain this status—the applicant in these proceedings has not done so, nor will he unless the parties voluntarily resume cohabiting and he satisfies all the other conditions—the undertaking never takes effect and lapses (section 46.3(b) of the Regulation respecting the selection of foreign nationals).
CONCLUSION
[36] Mr. Laabou is unable to obtain permanent residence in the spouse or common-law partner in Canada class, because he no longer cohabits with his wife. Absent an application for sponsorship, this condition is essential to obtain permanent residence in this class. Accordingly, Mr. Laabou has not satisfied all conditions precedent giving rise to a public legal duty to act under the circumstances.
[37] Since an order for a writ of mandamus is not warranted, the motion is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for a writ of mandamus be dismissed.
2. There is no serious question of general importance to be certified.
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7322-05
STYLE OF CAUSE: KHALID LAABOU
v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 10, 2006
REASONS FOR JUDGMENT BY: THE HONOURABLE MR. JUSTICE SHORE
APPEARANCES:
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Johanne Doyon
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FOR THE APPLICANT |
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Ian Demers
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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DOYON & ASSOCIÉS Montréal, Quebec
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FOR THE APPLICANT |
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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FOR THE RESPONDENT |