In the decision below, the Federal Court held that a four year delay in processing investor applications has to be understood in the circumstances of the general immigration program, and therefore it was reasonable.
Mazarei v. Canada (Minister of Citizenship and
Immigration)
Between
Abbas Fariborz Mazarei, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 338
2014 FC 322
Docket: IMM-977-13
Federal Court
Montreal, Ontario
Annis J.
Heard: February 27, 2014.
Judgment: April 2, 2014.
(37 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 ANNIS J.:-- This is an application by 63
applicants (the applicants) pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 [IRPA] for judicial
review of the respondent's failure to render a decision with respect to their
applications for permanent residence in the Quebec Investor class. The
applicants request an order in the nature of a mandamus requiring the respondent to render a final decision on their
applications within a specific time-frame not exceeding one year.
BACKGROUND
2 The
63 applicants who are party to this judicial review are all investors who were
selected by the province of Quebec for immigration purposes. In order to be
selected, they were required to make an investment of $400,000 with a
designated financial intermediary of the Investor Program, which they did
between August 2010 and February 2012. Pursuant to making this investment, the
applicants were issued a Certificat de Sélection du
Québec by the Ministère de
l'Immigration et des Communautés Culturelles confirming
that they met all the conditions to be duly selected as an Immigration Investor
by the province of Quebec.
3 As
a result, the applicants submitted Permanent Residence applications to the Visa
and Immigration Section of the Canadian Embassy of Damascus in Syria between
April 2010 and December 2011.
4 On
January 31, 2012, the Canadian Embassy in Damascus closed due to civil strife.
The applicants' files were redistributed to the visa office in Ankara, Turkey.
Approximately 22,000 permanent resident files were transferred from Damascus to
Ankara, including 7,687 files that needed adjudication. The transfers began in
February 2012 but problems with customs in Syria and Turkey delayed the
process. The physical transfer of all files was completed in May 2012.
5 On
April 29, 2012, the Visa and Immigration Section in Tehran, Iran, closed and
50,000 temporary resident files were also transferred to Ankara, including
8,100 that needed adjudication.
6 During
the spring and summer of 2012 resources in Ankara were shifted to hasten the
processing of temporary resident applications during the peak summer season.
The objective was to reduce the resources for processing economic applications
in order to address priority applications in other categories, such as
business, refugee, family class and temporary residents.
7 The
Ankara office also hired 17 new staff members in order to deal with the
increased workload. Visa officers with decision-making ability were involved in
the hiring and training process.
8 Since
the filing of their permanent residence applications, the applicants have not
received a decision from the respondent.
DECISION UNDER REVIEW
9 This
application was brought after a request was filed by the applicants pursuant to
Rule 9 of the Federal Courts Immigration and Refugee
Protection Rules, SOR/93-22. The applicants made a
request under Rule 9 and received a response from the Respondent dated February
13, 2013 stating that no decision had been made on their application under the
Quebec Investor Program.
ISSUE
10 I
find that the determinative issue in this application is whether there is a
satisfactory justification for the delay in processing the applicants'
application for permanent residence.
APPLICANTS' SUBMISSIONS
11 The
applicant contends that the excessive nature of a delay can only be understood
in light of the particular circumstances of a situation. He argues that Justice
Snider, in Vaziri v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1159 [Vaziri], made clear that there is no fixed
length of time according to which a delay must be considered unreasonable.
Justice Tremblay-Lamer set out the criteria for the determination of whether a
delay is unreasonable in Conille v. Canada (Minister of
Citizenship and Immigration), [1999] 2 F.C. 33, [1998]
F.C.J. No. 1553 at para 23 [Conille]:
· (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.
12 The
applicant argues that the delay in question is particularly unreasonable in
light of the fact that once processing of the application begins, eligibility,
security and medical assessments will have to be carried out, further
prolonging the process. As a result, it is the"numerous months still to
come" that the applicant alleges is unreasonable and warrants the issuance
of a mandamus.
13 In
addition, the applicant argues that because applicants are required to comply
with fixed time delays, the same obligation should be incumbent upon the
respondent.
14 The
applicant also argues that the closure of the Canadian Embassy in Damascus
cannot serve to explain or justify the delay the applicants are facing. This
argument appears to have two bases: firstly, the only measure the respondent
took to address the increased caseload in Ankara was the hiring of 17
additional staff, a clearly inadequate measure; and secondly, the closure of
the Damascus and Tehran offices have created an increased workload at the
Canadian Embassy in Ankara, and as Justice Kelen stated in Dragan v. Canada (Minister of Citizenship and Immigration),2003 FCT 211, [2003] 4 F.C. 189 at para 58 [Dragan], an enormous workload cannot be used
as an excuse for the delay in processing a valid claim, which claim would have
been accepted but for the delay and change in legislation.
15 The
applicant also alleges that the applicants in question have suffered great
prejudice from the delay in the processing of their applications in that they
have had to freeze $400,000 each since they complied with the investment
requirement.
16 Forty-four
of the 63 applications for leave are from Iranian citizens. The Special Economic Measures (Iran) Regulations,
SOR/2010-165, make it extremely difficult for Iranian citizens to transfer
money to financial institutions in Canada. Further, Iranian rials have lost
two-thirds of their value since the applicants submitted their applications.
All this means that the respondents' assets have significantly decreased in
value while they have been waiting for the processing of their applications.
17 The
applicant alleges that, in consideration of the criteria for granting a mandamus, there is no alternative way to
remedy the situation.
18 The
applicant further alleges that the argument that granting a mandamus would be allowing him to "jump
the queue" is baseless since this would deprive a mandamus of its very essence.
19 In
closing, the applicant alleges that the balance of convenience supports his
application.
20 Finally,
the applicant requests costs, citing Platonov v. Canada
(Minister of Citizenship and Immigration), [2000]
F.C.J. No. 1438, 192 F.T.R. 260; and Ben-Musa v. Canada
(Minister of Citizenship and Immigration), 2005 FC 764,
[2005] F.C.J. No. 942.
ANALYSIS
21 The
applicants and respondent agree that the test for the issuance of a mandamus was established in Apotex Inc v. Canada (Attorney General),
[1994] 1 F.C. 742 [Apotex]. The
Apotex test was restated by the
Federal Court of Appeal in Canada (Attorney General) v.
Arsenault, 2009 FCA 300 as the following:
· 1.
There must be a public
legal duty to act:
· 2.
The duty must be owed
to the applicant:
· 3.
There is a clear right
to the 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;
· 4.
Where the duty sought
to be enforced is discretionary, the following rules apply:
· (a)
in exercising a
discretion, the decision-maker must not act in a manner which can be
characterized as "unfair", "oppressive" or demonstrate
"flagrant impropriety" or "bad faith;
· (b)
mandamus is unavailable if the decision-maker's discretion is characterized
as being"unqualified", "absolute", "permissive"
or "unfettered";
· (c)
in the exercise of a
"fettered" discretion, the decision-maker must act
upon"relevant", as opposed to "irrelevant",
considerations;
· (d)
mandamus is unavailable to compel the exercise of a "fettered
discretion" in a particular way; and
· (e)
mandamus is only available when the decision-maker's discretion is
"spent"; i.e., the applicant has a vested right to the performance of
the duty.
· 5.
No other adequate
remedy is available to the applicant:
· 6.
The order sought will
be of some practical value or effect:
· 7.
The court in the
exercise of its discretion finds no equitable bar to the relief sought:
8. On a "balance of
convenience" an order in the
nature of mandamus favours the applicant: [...]
[Emphasis in original]
22 The
most contentious issue for our purposes is the second element - that there has
been a 'reasonable time' to comply with the duty.
23 What,
then, constitutes a 'reasonable time'? As the applicant himself points out, the
jurisprudence of this Court has established that, in the evaluation of the
length of a delay, no particular fixed delay can be applied uniformly. Rather,
an evaluation must be made in the particular circumstances (Vaziri, cited above, at para 48; Dragan, cited above, at para 55).
24 Also
as pointed out by the applicant, Justice Tremblay-Lamer in Conille (cited above) established some
helpful criteria for evaluating a delay. In this case, regardless of the
analysis carried out under the first two Conille criteria (that the delay in question be longer than the nature of
the process required, and that the applicant and his counsel not be responsible
for the delay), the applicants would clearly fail at the third step, that the
authority in question provide satisfactory justification for the delay.
25 The
respondent has provided ample explanation for the delay: that the Canadian
Embassy in Damascus closed due to the civil strife in Syria, and that the Visa
and Immigration Section of the Canadian Embassy in Tehran subsequently closed,
such that all the permanent resident applications at these respective embassies
were transferred to the Canadian Embassy in Ankara, which was extremely
overburdened as a result. These circumstances constitute an extraordinary
situation.
26 The
respondent further explained that 17 new staff were hired to deal with the
increased workload, more than doubling the number of staff at the Canadian
Embassy in Ankara; previously there were 16 staff members. However, the hiring
of new staff entailed training, further straining the resources at the Embassy
in Ankara. This would appear to indicate that the respondent acted in good
faith in an attempt to deal with the situation.
27 This
context is very important, as was made clear by Justice Snider in Vaziri (cited above), who stated the
following at paras 53-55:
· [53] There are two ways to look at whether the delay has been longer
than the nature of the process required. The first way is to consider a PR
application in a vacuum, without considering whether it relates to a parent or
grandparent or to someone from another class. In that case, the deliberate
delay at the sponsorship stage and at the beginning of the PR application stage
clearly extends the amount of time required to process the Applicants'
applications beyond the time strictly necessary to assess the
applications.
· [54] On the other hand, if one takes a wider and more detailed view,
then the length of time taken is within the time that the nature of the process
requires, because there are simply too many applications for Canada to allow them
all, resulting in annual levels being set. Even among the number of
applications that can be allowed within a given year, the Minister must
discriminate between the classes in order to meet the goals of IRPA and the
explicit policies of the Government. In this context, applications relating to
parents and grandparents require a longer time to process than most other PR
applications. The nature of the process is longer.
· [55] I prefer the latter view. The "nature of the process"
must be informed by a full understanding of where the Applicants' applications
fit within the immigration scheme. It is inherent in the system, as currently
constituted, that some PR applications are processed differently than others.
FC4 applications are processed slower, in accordance with policies. Therefore
the length of time taken to process the Applicants' files must be viewed in
light of this longer process. Upon the evidence before me, then, it does not
seem that the delay to date - between 3 and 4 years - is excessive. It would
appear that this is in accordance with the expected times to process FC4
applications that were filed in 2003. Indeed, the Respondent indicates that the
Applicants' files are expected to be completed sooner than would be expected,
since the rate of PR applications being received in the last year or two is
lessening.
28 As
a result, as Justice Snider underscores, the applicants' applications must be
understood within the immigration scheme. As the respondent explained, a choice
was made mid-2012 to reduce resources for economic applications in order to
process priority applications in the business, refugee, and family class, as
well as temporary resident applications, which was certainly an understandable
choice in the context of a vicious civil war. As Justice Snider points out, it
is inherent in the system that some permanent resident applications are
processed differently than others.
29 The
applicants relied upon Dragan
(cited above) and Meikle v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1274, 137 F.T.R. 304 for the proposition that a mandamus cannot be refused solely because a
20-month delay is deemed "premature".The circumstances in those two
instances are quite different than the case at bar. Meikle concerned a deportation order on the basis of criminality, and the
issue was whether there had been a breach of a principle of natural justice or
procedural fairness for failing to process the applicant's notice of appeal for
almost two years, thus precluding an appeal. Dragan concerned a legislative change that occurred while a group of
applicants were waiting for their permanent resident applications to be
processed, and which affected the rights of those applicants such that they
were treated differently because of the delay and the change in the system that
occurred in the meantime.
30 In
this case, it has been less than four years since the first applications were
filed for permanent residence from the group of 63 applicants. There is no
reason to believe that their applications will not eventually be processed and
accepted. On the contrary, as the respondent pointed out, in 2013 the Ankara
office reached its target of finalizing 300 applications in the Quebec Investor
class.
31 Finally,
it must be noted that maintaining the integrity of the system requires
consideration of the inequitable impact of allowing a mandamus application on other applications for permanent residence.
32 The
evidence indicates that the applicant's application was preceded by 519 to 523
applications for permanent residence as of June 4, 2013. If his application
were allowed, in essence the applicant would be allowed to "jump the
queue," thereby violating the fundamental rule of fairness by which the
processing of applications occurs in order of the date of their filing.
33 Justice
Phelan, in Agama v. Canada (Minister of Citizenship and
Immigration), 2013 FC 135 at paras 20-21, remarked that
it would be inequitable to grant a similar application considering the impact
of his decision on other applicants who were also waiting for processing:
· [20] In applying the fairness principle, it is relevant in this case
to look at the impact of the Applicant's position vis-à-vis others. All those
persons who filed after September 19, 2011 but before the Applicant would have
just as legitimate complaint as the Applicant. Since they were prior in filing
time, their applications would have priority over the Applicant.
· [21] Even if there was some basis for the Applicant's position, it
would not be equitable to grant relief without addressing the situation of
these other applicants.
34 As
a result, I find that the applicant has not demonstrated that the delay is
unreasonable, and the granting of a mandamus is not merited in the circumstances.
35 The
applicant submitted the following question for certification:
· "If an applicant successfully establishes that he is entitled
to the issuance of a writ of mandamus considering all the circumstances put forward in his case, should
the potential impact of the issuance of the relief on other individuals who are
not part of the application prevent the Court from granting the mandamus to the applicant?"
36 In
order to certify a question for appeal, a question must be (i) dispositive of
the appeal and (ii) transcend the interests of the immediate parties to the
litigation, as well as contemplate issues of broad significance or general
importance (Zhang v. Canada (Minister of Citizenship
and Immigration), 2013 FCA 168). The proposed question
is not dispositive of the issue, as there are other factors influencing the
outcome, including the actions taken by the respondent in response to the delay
and the causes for the delay. As a result, the question proposed by the
applicant does not merit certification.
37 These
Reasons for Judgment and Judgment will apply to all the files indicated in
Annex A, attached.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed.
ANNIS J.
* * * * *
ANNEXE A
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1.
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IMM-971-13
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AKBAR ADI GOZAL
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2.
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IMM-974-13
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JALIL PAKRAVESH
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3.
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IMM-979-13
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KHADIJEH SARSEPAR
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4.
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IMM-985-13
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MOHAMMAD HOSSEIN
TOOSI
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5.
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IMM-1216-13
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ABDULHALEEM
HAMEED MUKHLIF ALMALHMI
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6.
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IMM-1217-13
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ALAALDIN AHMED
YONIS ALMUZIAN
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7.
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IMM-1218-13
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SALIH HWAIDI
NASER NASER
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8.
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IMM-1220-13
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HUSSEIN FADHIL
BALMAN AL SAIGH
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9.
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IMM-1222-13
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NIZAR ROUMANI
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10.
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IMM-1223-13
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ABDUL GHANI
SARHAN
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11.
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IMM-1224-13
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FARIS MOHAMMED
DHEYAB DHEYAD
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12.
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IMM-1225-13
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FOUAD QASIM
MOHAMMED AL AMERI
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13.
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IMM-1226-13
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KAMAL ABDULATEEF
YAS YAS
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14.
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IMM-1227-13
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RAAD ISSA YOUSIF
AL-ISSA
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15.
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IMM-1228-13
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MOHAMMED GH. M.
ABBAS
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16.
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IMM-8264-13
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SAQAFI FARIBORZ
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17.
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IMM-2087-13
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AYMAN ALZUHAILI
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18.
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IMM-8265-13
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JAVAD HARANG
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19.
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IMM-8266-13
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MAJID HABIBIZADEH
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20.
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IMM-8268-13
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ZEINOLABEDIN
SHARIFI SIATNI
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21.
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IMM-8269-13
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GHOLAMREZAEY
AHMAD
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22.
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IMM-8270-13
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RAMIN NASSIMI
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23.
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IMM-8271-13
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SEYED NEHZAD
POUSTI
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24.
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MM-8272-13
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DREZA DAVOUDI RAD
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25.
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IMM-8273-13
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KAMBIZ ASHOURI
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26.
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IMM-8274-13
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KHALIL FANI YAZDI
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27.
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IMM-8275-13
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HEDESHI, HOSSEIN
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28.
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IMM-8276-13
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LAJOUE KALAKI
SAEYED HOSSEIN
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29.
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IMM-8277-13
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HOSSEIN
RAAFATISHBANI
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30.
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IMM-8279-13
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FARIDEH FOROOTAN
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31.
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IMM-8280-13
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JALAL YARMOHAMMAD
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32.
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IMM-8281-13
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KAZEMEINI
ABDOLRAHIM
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33.
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IMM-8283-13
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MOHAMMAD SHID FAR
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34.
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IMM-8284-13
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BAHRAM DANESHVAR
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35.
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IMM-8285-13
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NOJABA BABAK
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36.
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IMM-8286-13
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PARVIN RIAZRAFAT
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37.
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IMM-8287-13
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JIRIANI, MEHDI
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38.
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IMM-8288-13
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MOHSEN HONARIAN
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39.
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IMM-8289-13
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OYARHOSSEINI
ALIASGHAR
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40.
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IMM-8290-13
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MOGHADDAM SALEK
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41.
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IMM-8291-13
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PIRAYESH JUBIM
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42.
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IMM-8292-13
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SHADNOOSH,
MOHAMMAD MEHDI
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43.
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IMM-8293-13
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SEYEDABOLFAZL
AHMADPANAH
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44.
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IMM-8294-13
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KHOMARLOO PENDAR
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45.
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IMM-8295-13
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SABRI, ASHKBUS
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46.
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IMM-8296-13
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JAMALI, DR.
HOSSEIN
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47.
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IMM-8297-13
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SAEID M.
POORTEHRANI
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48.
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IMM-8298-13
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TAJDARI, RAMTIN
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49.
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IMM-8299-13
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ABBAS SHAHBAZIAN
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50.
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IMM-8300-13
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SHAHROKH KHANDABI
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51.
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IMM-8302-13
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FARZAD IZADI
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52.
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IMM-8306-13
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DEHJI
ABDOLHOSSEIN
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53.
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IMM-1064-14
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AHMAD
MOHAMMADKHANI
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54.
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IMM-1065-14
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ABOLF JALALI
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55.
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IMM-1066-14
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MAHMOUD
MOHAMMADKHANI
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56.
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IMM-1069-14
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MOHSEN REZAEI
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57.
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IMM-1070-14
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ALI SHAH HAMZEH
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58.
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IMM-1071-14
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KARIM RAJI
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59.
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IMM-1072-14
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NASER AAVANI
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60.
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IMM-1117-14
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BEHZAD AHADI
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61.
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IMM-1118-14
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ALIREZA RABBANI
ESFAHANI
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62.
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IMM-1119-14
|
MAJED SAHYOUN
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