ADMINISTRATIVE LAW
Judicial Review
Remedies
Application under Federal Courts Act, s. 18.1(3)(a) for order requiring Minister of Citizenship and Immigration (M.C.I.) to complete processing permanent residence application, filed in autumn of 2000—At hearing, M.C.I. sought adjournment to review “rediscovered” documents— Court not satisfied material of sufficient evidentiary value to justify adjournment—Applicant, Iranian, obtained refugee status in September 2000—In March 2001 Canadian Security Intelligence Service (CSIS) check, valid for 18 months, completed—By letter dated November 19, 2001, applicant notified had to submit certified translation of identity card— Had taken M.C.I. 9 1/2 months to advise applicant of this deficiency in application—Certified translation filed within weeks—In March 2004 applicant was told M.C.I. awaiting updated CSIS clearance—During these years of delay, applicant has not seen family, who live in Pakistan under dangerous conditions—As of February 2005 still no indication when CSIS will report—Issue whether applicant entitled to order of mandamus for excessive delay in dealing with application—Under Immigration and Refugee Protection Act (IRPA), s. 21(2), M.C.I. has statutory duty to process permanent resident status application, make decision—While new Act not saying decision to be made “as soon as possible”, F.C.A. upheld obligation to decide “without unreasonable delay” in Khalil v. Canada (Secretary of State), [1999] 4 F.C. 661 (C.A.)—M.C.I. suggesting that, given importance of security concerns, three‑year delay in updating CSIS clearance not unreasonable—Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33 (T.D.), setting out three considerations as to whether delay unreasonable: (1) delay longer than required, prima facie; (2) applicant, counsel not to blame for delay; (3) satisfactory justification not provided— M.C.I. had given estimate of 18 months from completion of filing requirements and this, though estimate only, indicates nature of process—This was prima facie evidence of time required—Minister submitting applicant responsible for 11 months of delay in not filing certified translation but that delay attributable, in part, to delay in advising applicant of deficiency—Even if all blame were put on applicant, would not justify 4 1/2 year delay—File review reveals file “bounced” within Department, between other government agencies—Such internal “scurrying about” with no progress not satisfactory justification—Not open to M.C.I. to avoid responsibility by blaming some other governmental organization—Important to keep in mind CSIS check lapsed due to respondent’s inaction—At close of argument, counsel to Minister advised Court further 6 months reasonable time to obtain decision yet added caveats in attempt to avoid making commitment—Application allowed—To ensure order will have practical effect, continuity, Judge remaining seized of matter—Minister allowed 6 months to decide and, should extension be sought, must be done well in advance of deadline, with onerous burden of justification—Federal Courts Act, R.S.C., 1985, c. F‑7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1(3)(a) (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27)—Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 21(2).
Hamalipoor v. Canada (Minister of Citizenship and Immigration) (IMM‑4953‑04, 2005 FC 803, Phelan J., order dated 3/6/05, 8 pp.)