Date: 20030626
Docket: IMM-3797-02
Ottawa, Ontario, Thursday, this 26th day of June, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
ANATOLI KALACHNIKOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA"), seeking an order of mandamus, directing the Respondent to process the application of Anatoli Kalachnikov (the "Applicant") for permanent residence and issue a final decision within sixty days of this Court's order.
Background
The Applicant and his wife, Valentina Kalachnikova, citizens of Russia, have endured a long, and arduous quest to become permanent residents of Canada.
In July 1998, their daughter, Elena Gribanova applied to sponsor them to come to Canada as permanent residents. The Canadian Embassy in Moscow (the "Embassy"), by letter dated February 11, 1999, advised Ms. Gribanova that processing at their office required, on average, fourteen months from the date that they receive the Application for Permanent Residence until the date the case is finalized. The Applicant and his wife submitted completed and signed Applications for Permanent Residence to the Embassy by courier from Canada on March 2, 1999.
They completed their medical examinations in March 1999. The Embassy advised, by letter dated August 12, 1999, that these examinations were valid until April 28, 2000. In this letter, the Embassy also advised that their case was "currently under review for background checks."
On June 8, 2000, the Applicant attended an interview at the Embassy. Final documentation supporting the application was submitted in July 2000.
Between October 15, 1999 and June 6, 2002, the Applicant, through his counsel, Mr. Rotenberg, wrote 15 letters to the Embassy to inquire about the status of his application and background checks. The Embassy responded to some, but not all, of these requests.
On August 13, 2002, the Applicant filed his application for leave and judicial review with this Court.
As of the date of this hearing, the time that has elapsed since the application documentation was completed in July 2000 is almost 3 years.
Issues
The Applicant raises the following issue:
1. Is the issuance of a writ of mandamus directing the Minister of Citizenship and Immigration to process the Applicant's application for permanent residence justified having regard to the excessive delay?
Analysis
For the reasons that follow, I am of the view that this application should succeed although on different terms than proposed by the Applicant.
The Test for Mandamus
Mandamus is a discretionary, equitable remedy (Khalil v. Canada (Secretary of State), [1999] 4 F.C. 661 (C.A.)) subject to the following conditions precedent.
1. There is a public duty to the applicant to act;
2. The duty must be owed to the applicant;
3. There is a clear right to performance of that duty, in particular:
(a) the applicant has satisfied all conditions precedent giving rise to the duty;
(b) there was a prior demand for performance of the duty, a reasonable time to comply with the demand, and a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay; and
4. There is no other adequate remedy. [See Note 5 below]
5. The "balance of convenience" favours the applicant (Apotex Inc. v. Canada (A.G.), [1994] 1F.C. 742 (C.A.), aff'd [1994] 3 S.C.R. 1100, Conille v. Canada (Minister of Citizenship and Immigration), [1992] 2 F.C. 33 (T.D.)).
In Conille, supra, [1999] 2 F.C. 33 (T.D.) , Tremblay-Lamer J. set out three requirements at paragraph 23, that must be met if a delay is to be considered unreasonable:
(1) The delay in question has been longer than the nature of the process required, prima facie;
(2) The applicant and his counsel are not responsible for the delay; and
(3) The authority responsible for the delay has not provided satisfactory justification.
In Mohamed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1677 (T.D.) (QL), Dawson J. cautioned at paragraph 15 that prior jurisprudence is "not particularly helpful except for the purpose of outlining the parameters within which the Court has issued an order in the nature of mandamus where it has found an unusual delay which has not been reasonably explained." Dawson J. granted the order for mandamus in Mohamed, supra because of the length of the delay in completing the security review and the lack of explanation for why the estimated six months to one year processing time was exceeded. Dawson J. did not accept that the statement that the delays had to do with security concerns was a satisfactory justification for the fact that, after more than four years, the applicant's application for landing was still outstanding.
Application of the Test to the Facts
1. Public Legal Duty to Act
Subsection 9(2) of the Immigration Act, R.S.C. 1985, c. I-2 places a duty on the Respondent to assess the Applicant's application for permanent residence:
(2) An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing.
(2) Le cas du demandeur de visa d'immigrant est apprécié par l'agent des visas qui détermine si le demandeur et chacune des personnes à sa charge semblent répondre aux critères de l'établissement.
2. Duty Owed to the Applicant
Since the application for permanent residence in this case is that of the Applicant, the duty is owed to the Applicant.
3. Clear Right to Performance
The Applicant's application for permanent residence and the requisite processing fee were received by the Embassy in March 1999. The Applicant has also provided the Respondent with all of the requested information and documents, including medical examinations and personal net worth information. The Applicant has satisfied all of the conditions precedent giving rise to the duty. This was not disputed by the Respondent.
In addition, I am satisfied that there is a clear right to performance in this case. The Applicant, through his counsel, made at least fifteen requests for information regarding the status of his application. A review of the correspondence from Mr. Rotenberg to the Embassy reveals that the Applicant made a number of prior demands for the performance of the duty set out in subsection 9(2) of the Immigration Act.
In my view, the Respondent has also been given a reasonable time to comply with the demand for performance of this duty. While I agree with the Respondent that the performance of background checks would increase the time required to process the Applicant's application for permanent residence, the Respondent has been given a reasonable amount of time to complete those checks and process the Applicant's application.
In addition, I am of the view that this delay was unreasonable. The Respondent has not provided the Applicant or this Court with satisfactory justification for why it has taken nearly three years to process his application for permanent residence (Conille, supra). I disagree with the Respondent that "background checks are pending" is an adequate explanation for this delay. Those background checks have been pending since October 1999 and the Respondent has not provided the Applicant with any information to explain why these checks have taken more than three years. In addition, Dawson J. rejected a similar explanation in Mohamed, supra.
Therefore, the Applicant has a clear right to the performance of this duty, namely the processing of his application for permanent residence.
4. No Other Adequate Remedy
I agree with the Applicant that there is no other remedy available to him. His repeated and numerous requests have often gone unanswered, and when they have been answered by the Embassy, the information provided was vague, referring to the fact that background checks are not yet completed or are still pending. There is no indication that the Respondent has been taking any steps to complete the processing of the Applicant's application.
5. Balance of Convenience
In my view, while the balance of convenience lies with the Applicant, the Respondent also raises valid concerns that require attention.
The Applicant, who is in his early sixties, wishes to come to Canada with his wife in order to live with their daughter and their two grandchildren. He has waited for three years since his application process was completed to learn the outcome of his application for permanent residence in Canada and has done everything necessary for the processing of that application. The Respondent has failed to provide satisfactory justification for this delay. Family reunification is one of the objectives of both the Immigration Act, which was in force at the time the application for permanent residence was made, and of the IRPA, which is in force today. Based on these factors, I am of the view that the balance of convenience lies with the Applicant.
However, I am also aware of the need for background checks to be carried out in order for the Respondent to ensure that the objectives of the IRPA related to maintaining the security of Canadians (IRPA, s. 3(1)(h) , (I)) are met. To thrust a judicial intervention into the process of completing background checks could be seen as inappropriate interference with the legislative mandate expressed in the IRPA. I am also aware of the disruption to the processing of all other applications that takes place when the file of one individual is placed ahead of all others. Nevertheless, I believe that my decision could address these concerns in two ways:
1. By allowing the Respondent a further 6 months to process the application, rather than the 60 days requested by the Applicant; and
2. By providing that the Respondent may make application to this Court for an extension of time beyond that 6 months to process the application. I would expect that any such application would be accompanied by adequate justification.
Conclusion
In conclusion, I recognize this as one of those exceptional circumstances where an order of mandamus should issue.
Costs
The Applicant seeks solicitor and client costs as was done in Poon v. Canada (Minister of Citizenship and Immigration), 2003 FCT 595, [2003] F.C.J. No. 779 (QL). On the facts of this case, I am not satisfied that the Applicant has demonstrated "special reasons", as contemplated by rule 22 of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22. Accordingly, the request for costs will be denied.
Question for Certification
Parties were asked to submit any proposed questions for certification in writing for my consideration. No submissions were made. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The Respondent process the application of the Applicant for permanent residence and issue a final decision within 6 months of this Court's order, subject to the right of the Respondent to apply for an extension of this time on reasonable grounds.
2. There is no award of costs.
3. There is no certified question.
"Judith A. Snider"
_______________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-3797-02
STYLE OF CAUSE: Anatoli Kalachnikov v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 5, 2003
REASONS FOR ORDER AND ORDER: The Honourable Madam Justice Snider
DATED: June 26, 2003
APPEARANCES:
Mr. Cecil L. Rotenberg for the Applicant
Mr. Jeremiah Eastman for the Respondent
SOLICITORS OF RECORD:
Mr. Cecil L. Rotenberg for the Applicant
Toronto, Ontario
Mr. Morris Rosenberg for the Respondent
Deputy Attorney General of Canada