Askar v. Canada ( Minister of Citizenship and Immigration )
IMM-3296-99
Lemieux J.
2/11/99
17 pp.
Motion to strike application for order declaring applicant permanent resident of Canada; mandamus compelling Department of Citizenship and Immigration to process sponsorship application-Applicant Siham Askar obtaining permanent resident status in 1978-Returning to Lebanon in 1980 to care for sick mother-in-law-Returning to Canada in 1996, showing permanent resident document at Customs-In 1997 applied to sponsor husband, children-Questions arising as to whether Siham Askar permanent resident-S. 27 report to Deputy Minister stating Siham Askar entering Canada as visitor, remaining in Canada after ceasing to be visitor-In May 1998 Siham Askar making submissions as to permanent resident status-Now submitting no proceedings taken to determine permanent resident status-Motion dismissed-Application for judicial review seeking declaration, mandamus not so clearly improper as to be bereft of any possibility of success-(i) Minister submitting Siham Askar not exercising right of appeal to Immigration Appeal Board-As Deputy Minister not exercising authority under Immigration Act, s. 27, neither senior immigration officer nor adjudicator making removal order-Removal order condition precedent to exercise by that person of appeal rights under s. 70-Federal Court Act, s. 18.5 inapplicable because qualified by words "to the extent that it may be so appealed"-(ii) Minister submitting decision regarding permanent residency that of immigration officer, and accordingly application for judicial review thereof may be commenced only with leave of Court pursuant to Immigration Act, s. 82.1-Applicant submitting never formally advised of loss of permanent resident status; no proceedings commenced to refer question of status to adjudicator-Believes herself to be permanent resident; nature of proceeding to require visa officer to process applications for permanent residence of husband, children-S. 82.1(2) not bar to application-Applicant simply seeking mandamus to enforce right to sponsor family in face of refusal to process sponsorship application-That also seeking declaration continuing to be permanent resident not altering analysis, not necessarily involving decision by immigration officer-Debatable issue-(iii) Minister submitting mandamus cannot lie because visa officer in Damascus having no duty to process application regarding Siham Askar's husband, dependants until issue of permanent resident status determined-Contradicting earlier grounds premised on fact decision made in respect of Siham Askar-This argument giving credence to applicant's position, i.e. permanent resident status not lost-Support found in Krause v. Canada, [1999] 2 F.C. 476 (C.A.)-(iv) Minister submitting application seeking relief in respect of two separate decisions: decision regarding permanent residency, also regarding visa officer's decision to stop processing application-On facts, not clear decision made with respect to Siham Askar's permanent resident status-(v) Minister submitting applicant not providing date, details of specific order with respect to which judicial review sought-Applicant arguing no decision made with respect to permanent resident status-Applicant's position arguable-Immigration Act, R.S.C., 1985, c. I-2, s. 27 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, ss. 16, 123(b); 1995, c. 15, s. 5), 32 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 5; (4th Supp.), c. 28, s. 11; S.C. 1992, c. 49, s. 21), 70 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 8; (4th Supp.), c. 28, ss. 18, 35; c. 29, s. 6; S.C. 1992, c. 49, s. 65; 1995, c. 15, s. 13), 82.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1990, c. 8, s. 53; 1992, c. 49, s. 73)-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.5 (as enacted by S.C. 1990, c. 8, s. 5).