Tumarkin v. Canada (Minister of Citizenship and Immigration). Note that the court ordered costs against the applicant.
Between
Denis Tumarkin, Liudmila Tumarkina and
Elena Tumarkina, Applicants, and
Minister of Citizenship and Immigration, Respondent
Denis Tumarkin, Liudmila Tumarkina and
Elena Tumarkina, Applicants, and
Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 918
2014 FC 915
Docket: T-483-14
Federal Court
Toronto, Ontario
Phelan J.
Heard: September 3, 2014.
Judgment: September 24, 2014.
Docket: T-483-14
Federal Court
Toronto, Ontario
Phelan J.
Heard: September 3, 2014.
Judgment: September 24, 2014.
(26 paras.)
JUDGMENT AND REASONS
· PHELAN J.:--
I. Introduction
1 This
is an application in the nature of mandamus based on the allegation of undue delay in the processing of the
Applicants' citizenship applications by Citizenship and Immigration Canada
[CIC]. The Applicants also seek an order requiring the Respondent to sever Mr.
Tumarkin's application from the citizenship applications of his wife and
daughter in order to expedite their applications independent of his
(husband/father's) application.
2 This
application is made in the face of an ongoing investigation of Mr. Tumarkin's
admissibility as a permanent resident.
3 The
Applicants had initially raised issues of s 7 and 15 of the Charter but counsel correctly noted that this
application is an issue of unreasonable delay and ceased to press the Charter issues. The Court concurs with
counsel's position that this judicial review is governed by the basic
principles of mandamus. The Charter issues need not be addressed.
II. Background
4 The
pertinent legislative provisions are:
(1) The Minister shall
grant citizenship to any person who
· (a) makes application for citizenship;
· (b) is eighteen years of age or over;
· (c) is a permanent resident within the meaning
of subsection 2(1) of the Immigration and Refugee
Protection Act, and has, within the four years
immediately preceding the date of his or her application, accumulated at least
three years of residence in Canada calculated in the following manner:
for every day during
which the person was resident in Canada before his lawful admission to Canada
for permanent residence the person shall be deemed to have accumulated one-half
of a day of residence, and
for every day during
which the person was resident in Canada after his lawful admission to Canada
for permanent residence the person shall be deemed to have accumulated one day
of residence;
· (d) has an adequate knowledge of one of the
official languages of Canada;
· (e) has an adequate knowledge of Canada and of
the responsibilities and privileges of citizenship; and
· (f) is not under a removal order and is not
the subject of a declaration by the Governor in Council made pursuant to
section 20.
· ...
(1.1) Despite subsection
(1), the citizenship judge is not authorized to make a determination
until
· (a) the completion of any investigation or
inquiry for the purpose of ascertaining whether the applicant should be the
subject of an admissibility hearing or a removal order under the Immigration and Refugee Protection Act or
whether section 20 or 22 applies to the applicant; and
· (b) if the applicant is the subject of an
admissibility hearing under the Immigration and Refugee
Protection Act, a determination as to whether a removal
order is to be made against that applicant.
* * *
(1) Le ministre attribue
la citoyenneté à toute personne qui, à la fois:
· a) en fait la demande;
· b) est âgée d'au moins dix-huit ans;
· c) est un résident permanent au sens du
paragraphe 2(1) de la Loi sur l'immigration et la
protection des réfugiés et a, dans les quatre ans qui
ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans
en tout, la durée de sa résidence étant calculée de la manière suivante:
un demi-jour pour chaque
jour de résidence au Canada avant son admission à titre de résident
permanent,
un jour pour chaque jour
de résidence au Canada après son admission à titre de résident permanent;
· d) a une connaissance suffisante de l'une des
langues officielles du Canada;
· e) a une connaissance suffisante du Canada et
des responsabilités et avantages conférés par la citoyenneté;
· f) n'est pas sous le coup d'une mesure de
renvoi et n'est pas visée par une déclaration du gouverneur en conseil faite en
application de l'article 20.
· ...
(1.1) Malgré le
paragraphe (1), le juge de la citoyenneté ne peut statuer sur la demande
:
· a) tant que n'est pas terminée l'enquête menée
pour établir si le demandeur devrait faire l'objet d'une enquête dans le cadre
de la Loi sur l'immigration et la protection des
réfugiés ou d'une mesure de renvoi au titre de cette loi
ou si les articles 20 ou 22 s'appliquent à l'égard de celui-ci;
· b) lorsque celui-ci fait l'objet d'une enquête
dans le cadre de la Loi sur l'immigration et la
protection des réfugiés, tant qu'il n'a pas été décidé
si une mesure de renvoi devrait être prise contre lui.
· Citizenship Act, RSC 1985, c C-29
(1) A permanent resident
or a foreign national is inadmissible on grounds of serious criminality
for
· (a) having been convicted in Canada of an
offence under an Act of Parliament punishable by a maximum term of imprisonment
of at least 10 years, or of an offence under an Act of Parliament for which a
term of imprisonment of more than six months has been imposed;
· (b) having been convicted of an offence
outside Canada that, if committed in Canada, would constitute an offence under
an Act of Parliament punishable by a maximum term of imprisonment of at least
10 years; or
· (c) committing an act outside Canada that is
an offence in the place where it was committed and that, if committed in
Canada, would constitute an offence under an Act of Parliament punishable by a
maximum term of imprisonment of at least 10 years.
· ...
A foreign national,
other than a protected person, is inadmissible on grounds of an inadmissible
family member if
· (a) their accompanying family member or, in
prescribed circumstances, their non-accompanying family member is inadmissible;
or
· (b) they are an accompanying family member of
an inadmissible person.
* * *
(1) Emportent
interdiction de territoire pour grande criminalité les faits suivants:
· a) être déclaré coupable au Canada d'une
infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins
dix ans ou d'une infraction à une loi fédérale pour laquelle un emprisonnement
de plus de six mois est infligé;
· b) être déclaré coupable, à l'extérieur du
Canada, d'une infraction qui, commise au Canada, constituerait une infraction à
une loi fédérale punissable d'un emprisonnement maximal d'au moins dix
ans;
· c) commettre, à l'extérieur du Canada, une
infraction qui, commise au Canada, constituerait une infraction à une loi
fédérale punissable d'un emprisonnement maximal d'au moins dix ans.
· ...
Emportent, sauf pour le
résident permanent ou une personne protégée, interdiction de territoire pour
inadmissibilité familiale les faits suivants:
· a) l'interdiction de territoire frappant tout
membre de sa famille qui l'accompagne ou qui, dans les cas réglementaires, ne
l'accompagne pas;
· b) accompagner, pour un membre de sa famille,
un interdit de territoire.
· Immigration and Refugee Protection Act, SC
2001, c 27
5 The
Applicants are a family from Russia. Mr. Tumarkin is (was) a lawyer and
businessman. The Applicants arrived in Canada as permanent residents in May
2009.
· On October 10, 2012, they applied for Canadian citizenship.
6 On
March 8, 2013, Mr. Tumarkin was informed that Canada Border Services Agency
[CBSA] had reasonable grounds to believe that he was inadmissible under the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] , s 36(1) because of his "criminal conviction(s)".
Mr. Tumarkin also received a s 44(1) report based on information that he had
been charged with one count of swindling. This charge is equivalent in Canada
to fraud of over $5,000.
7 Mr.
Tumarkin responded that it was a bogus charge, which could have been fabricated
by any of his opponents or former clients in Russia. He further submitted a
report from a Russian lawyer confirming that there were no such charges against
him.
8 In
June 2013, the Respondent issued Mr. Tumarkin a Residency Questionnaire which
was responded to in August 2013.
9 On
December 18, 2013, the Applicants demanded (a) an explanation for the delay in
processing the citizenship applications; (b) the applications of Mrs. Tumarkina
and the daughter be separated from Mr. Tumarkin and processed without delay;
and (c) Mr. Tumarkin's application also be processed without delay.
10 The
Respondent, in respect of the request to separate the processing of the
applications [splitting the file], responded that the request to split the file
is only considered in certain circumstances and that for the time being, the
applications would remain in the queue for processing together as a family.
11 As
conceded, the only issue is whether a writ of mandamus should be issued splitting the file and the respective split
applications be processed forthwith.
The critical issue is the "forthwith"
aspect of the relief, as there is no evidence that the applications are not in
process. The question is whether the delay to date in deciding the applications
is reasonable.
III. Analysis
12 It
is worth noting that 23 months have elapsed from the filing of the citizenship
applications to date; and particularly, 16 months had elapsed from that filing
date to the initiation of these court proceedings.
13 The
basic principal factors for a mandamus application are well settled and as outlined in Apotex Inc v Canada (Attorney General), [1994]
1 FC 742 (affirmed [1994] 3 SCR 110) at paragraph 45, they are:
There must be a public
legal duty to act: ...
The duty must be owed to
the applicant: ...
There is a clear right
to performance of that duty, in particular:
the applicant has
satisfied all conditions precedent giving rise to the duty; ...
there was (i) a prior
demand for performance of the duty; (ii) a reasonable time to comply with the
demand unless refused outright; and (iii) a subsequent refusal which can be
either expressed or implied, e.g. unreasonable delay; ...
· ...
No other adequate remedy
is available to the applicant: ...
The order sought will be
of some practical value or effect: ...
The Court in the
exercise of its discretion finds no equitable bar to the relief sought:
...
On a "balance of
convenience" an order in the nature of mandamus should (or should not)
issue.
14 As
established in Conille v Canada (Minister of Citizenship
and Immigration), [1999] 2 FC 33, 87 ACWS (3d) 24, mandamus is available in citizenship matters
-- in the appropriate circumstances.
15 The
matter of splitting a file is not a separate stand alone right. It is a process
or ameliorating remedy designed to avoid unreasonable delay for those
applicants who might otherwise be delayed where there is no justifiable linkage
to the file which is being delayed for good reason.
Mr. Tumarkin's File
16 The
Applicants have not established that Mr. Tumarkin's file is not being acted
upon. While there is no evidence of a conviction in Russia, there is some
suggestion of possible pending charges. The Respondent has a duty to determine
the status of Mr. Tumarkin's charges (if any) in Russia but there is no
evidence of a refusal to inquire or unreasonable delay in this determination.
17 Given
the importance of granting citizenship and the corresponding difficulty in
revoking citizenship, it is not unreasonable for officials to be diligent in
ensuring that they have the necessary facts. While the delay in determining Mr.
Tumarkin's criminal charge circumstances in Russia cannot continue forever,
there is nothing to suggest that CBSA officials have been unresponsive, slow or
have otherwise not dealt with the issue in a reasonable manner.
18 While
average waiting times are not necessarily determinative of acting "within
a reasonable time", such averages give a benchmark from which to assess
delay regarding both the particular file and the system. In this case, the
processing of Mr. Tumarkin's application falls within the average wait time and
there is no evidence that the average is created by a malfunctioning
under-resourced system.
19 As
the Applicants have not shown that there is either a refusal to process (actual
or deemed) or that the delay is unreasonable, no writ of mandamus will be granted. Not only is there
the issue of possible charges in Russia but the Residency Questionnaire is
still an active matter.
Mrs. Tumarkina and
daughter
20 The
Applicants claim that the applications of Mrs. Tumarkina and the daughter ought
to be severed from that of Mr. Tumarkin and processed separately and forthwith.
21 The
Respondent has a policy in respect of splitting files to avoid delay in
processing applications, which would otherwise be linked to a delayed application
-- for example, to deal with language testing.
22 Whether
a file should be split is a matter of discretion rather than of right. It is
therefore not amenable to mandamus. An unreasonable exercise of discretion is a matter for such
remedies as certiorari or
declaration.
23 Mrs.
Tumarkina and the daughter are entitled to the same right of processing in a
reasonable time as is Mr. Tumarkin. There is a rational and legal connection
between Mr. Tumarkin's application and those of Mrs. Tumarkina and the daughter
because there is an outstanding residency questionnaire.
24 As
Mr. Tumarkin's admissibility status is a live issue, there is a reasonable
basis for maintaining the linkage with all family members. Additionally, the
processing of the applications of Mrs. Tumarkina and the daughter is currently
not outside the average waiting times.
25 Therefore,
the delay in processing Mrs. Tumarkina's and the daughter's applications is
reasonable.
IV. Conclusion
26 For
these reasons, this judicial review will be dismissed with costs. The dismissal
of this judicial review is without prejudice to the Applicants or any of them
bringing another application for similar or other relief at the appropriate
time.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed with costs. The
dismissal of this judicial review is without prejudice to the Applicants or any
of them bringing another application for similar or other relief at the
appropriate time.
PHELAN J.
