T-1603-98
Jean Conille (Applicant)
v.
Minister of Citizenship and Immigration (Respondent)
Indexed as: Conillev. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Tremblay-Lamer J."Montréal, October 13; Ottawa, October 30, 1998.
Citizenship and Immigration — Status in Canada — Citizens — Practice — Application for citizenship left in abeyance more than three years on ground CSIS investigation not concluded — Unreasonable delay — Where applicant prima facie satisfying conditions precedent specified in Citizenship Act, s. 5(1) and where demand for performance, authorities have duty to act — Mandamus — Registrar of Citizenship must inform CSIS unless justification for continuing investigation provided as soon as Registrar shall consider appropriate, investigation will be considered closed and application will be forwarded to citizenship judge to consider and decide application.
Security intelligence — Registrar of Citizenship causing inquiries to be commenced following application for citizenship — After three years, CSIS investigation still not complete — Unreasonable delay — CSIS has usurped decision-making powers of Registrar, citizenship judge — Requirements for writ of mandamus met.
Administrative law — Judicial review — Mandamus — Unreasonable delay — CSIS investigation following application for citizenship — After three years, investigation still not complete — To allow CSIS to indefinitely delay conclusion of investigation and thereby prevent Registrar from submitting application to citizenship judge amounting to usurping powers conferred on Registrar, citizenship judge by Act — Where applicant prima facie meets requirements listed in Act, s. 5(1) and demand for performance made, authorities having duty to act and requirements for writ of mandamus met.
After his first application for citizenship was refused, the applicant made a second application in August 1995. Three years later, that application still not having received a response because the investigation undertaken by CSIS at the request of the Registrar of Citizenship had not been completed, the applicant applied for a writ of mandamus directing the Minister of Citizenship and Immigration to process his application for citizenship. The applicant alleged that, although there was no time limit prescribed by statute, the three-year delay did not comply with the provisions of the Citizenship Act, which required that applications be processed promptly and transparently. The applicant further alleged that the processing of citizenship applications was not legally subject to the authorization of CSIS and accordingly that the powers conferred on the Registrar and the citizenship judge have been usurped.
Held, the application should be allowed.
When the applicant prima facie meets the requirements listed in subsection 5(1) of the Act, and there is a demand for performance, the authorities have a duty to act. In the instant case, the record did not show that the applicant was under a deportation order and he was no longer the subject of a declaration by the Governor in Council made pursuant to section 20.
It was not sufficient to allege that the Registrar had no legal obligation to act as long as the inquiries have not been completed. By that reckoning, an investigation could go on indefinitely and the Registrar would never have a duty to act. In fact, the statutory framework was defective. For one thing, the powers of the Registrar to direct that an investigation be conducted in order to ascertain that the requirements of the Act have been met are not subject to any temporal or pragmatic parameters, apart from the obligation to await completion of the inquiries provided for in section 11 of the Regulations, and for another, no time limits are placed on the powers of the investigators, in this case CSIS. The reasonableness of the time taken to perform a statutory obligation was defined in Re Civil Service Association of Alberta, Branch 45 and Alberta Human Rights Commission et al. (1975), 62 D.L.R. (3d) 531 (Alta. S.C.). A delay will be considered unreasonable if (1) the delay 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.
To allow CSIS to delay the conclusion of its investigation indefinitely, and thereby prevent the Registrar from submitting the application to the citizenship judge amounts to usurping the powers conferred on the Registrar and the citizenship judge by the Act. The evidence showed that CSIS has usurped the decision-making powers conferred on the Registrar and the citizenship judge. Furthermore, the applicant has satisfied the requirements for the issue of a writ of mandamus stated in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.): (1) there was a public legal duty to the applicant, which rested on the Registrar and the citizenship judge, to determine and process the application in accordance with the Act and the Regulations; (2) first, the application satisfied the Act and the Regulations to the extent possible, and second, the time taken by CSIS was unreasonable and amounted to an implied refusal; (3) in the instant case, the applicant had no other remedy.
Consequently, the Registrar will have to inform CSIS that unless justification for continuing the investigation is provided as soon as the Registrar shall consider appropriate, the investigation will be considered to be closed. If there are serious reasons to justify continuing the investigation, the Registrar shall then inform the applicant that the investigation is continuing and that processing of his application is suspended until the investigation is completed. If there are no serious reasons or a reply is not received, the Registrar shall, on the assumption that the investigation is closed, forward the application to a citizenship judge to consider the application and decide on the merits.
statutes and regulations judicially considered
Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 14, 15, 41.
Citizenship Act, R.S.C., 1985, c. C-29, ss. 5(1), 14 (as am. by S.C. 1995, c. 15, s. 23), 20 (as am. by S.C. 1997, c. 22, s. 3), 21, 22 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 11; S.C. 1992, c. 47, s. 67; c. 49, s. 124).
Citizenship Regulations, 1993, SOR/93-246, s. 11 (as am. by SOR/94-442, s. 2).
Criminal Code, R.S.C., 1985, c. C-46, ss. 202, 203.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by S.C. 1990, c. 8, s. 4).
cases judicially considered
applied:
Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742; (1993), 18 Admin. L.R. (2d) 122; 52 C.P.R. (3d) 339; 162 N.R. 177 (C.A.); Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315 (T.D.).
considered:
Lee v. Canada (Secretary of State) and Registrar of Citizenship (1987), 16 F.T.R. 314; 4 Imm. L.R. (2d) 97 (F.C.T.D.); Re Civil Service Association of Alberta, Branch 45 and Alberta Human Rights Commission et al. (1975), 62 D.L.R. (3d) 531 (Alta. S.C.).
APPLICATION for judicial review seeking a writ of mandamus directing the Minister of Citizenship and Immigration to process the applicant's application for citizenship, which has received no response after three years because the investigation by CSIS has not been completed. Application allowed.
appearances:
Jean-Ernest Pierre and Jean Casimir for applicant.
Pascale-Catherine Guay and Josée Paquin for respondent.
solicitors of record:
Jean-Ernest Pierre, Montréal, for applicant.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for order rendered by
Tremblay-Lamer J.: The applicant, Jean Édouard Conille, has filed an application for judicial review under section 18 of the Federal Court Act1 seeking a writ of mandamus to direct the Minister of Citizenship and Immigration (the Minister) to process the application for citizenship he filed on August 7, 1995, under the Citizenship Act2 (the Act).
FACTS
The applicant comes from Haiti, and was born in 1967. He arrived in Canada in 1973 as a permanent resident. On November 18, 1991, he made his first application for citizenship, which was refused on June 15, 1995 by the Citizenship Judge Elizabeth Wilcock. The applicant did not meet the residence requirement set out in subsection 5(1) of the Act in that he had been under a probation order for a period of three years ending on August 3, 1991, and in accordance with section 21 of the Act that period could not be taken into account in calculating the length of residence in Canada. The period of probation had been imposed on the applicant after he was convicted of causing death by criminal negligence, on August 3, 1988, contrary to sections 202 and 203 of the Criminal Code.3
On August 7, 1995, the applicant made a new application for citizenship which has not yet received a response. Accordingly, the purpose of this application for judicial review is to obtain an order directing the Minister of Citizenship and Immigration to process the application for citizenship.
THE PARTIES' ARGUMENTS
The applicant contends, first, that the three-year delay since the application for citizenship was made on August 7, 1995, is unreasonable. In his view, the investigation concerning him, which is cited as justification for the delay in processing his case, should have started in December 1994, although the application in question here was filed in August 1995. Under the regulatory procedure, requests for investigations are submitted when the application for citizenship is filed, and do not take three years to be completed. This delay does not comply with the provisions of the Act, which requires, in mandatory language, that applications be processed promptly and transparently.
In addition, the applicant alleges that the processing of applications, for citizenship is not legally subject to the authorization of the Canadian Security Intelligence Service (CSIS) and accordingly that the powers conferred on the Registrar and the citizenship judge have been usurped. The respondent, on the other hand, asserts that the applicant's citizenship application cannot be examined as long as CSIS has not given its authorization. In the applicant's view, this amounts to an unauthorized and illegal delegation of power, since CSIS has no statutory power to authorize or not authorize a citizenship application. Sections 14 and 15 of the Canadian Security Intelligence Service Act4 only gives CSIS powers to advise the Minister of Citizenship and Immigration.
With respect to the delegation of power, the respondent contends that CSIS is involved only as an adviser, supplying the results of its investigation. As set out in the record, the decision-making power is not exercised by CSIS.
ISSUE
Is issuance of a writ of mandamus directing the Minister of Citizenship and Immigration to process the applicant's citizenship application justified having regard to the allegations of unreasonable delay and usurpation of powers by CSIS?
ANALYSIS
We need only briefly recall that issuance of a writ of mandamus is subject to the following conditions precedent:
(1) there is a public legal duty to the applicant 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, e.g. unreasonable delay; and
(4) there is no other adequate remedy.5
Processing of citizenship applications is governed by the Act and the Citizenship Regulations, 19936 (the Regulations). In accordance with subsection 5(1) of the Act, the Minister shall grant citizenship to any person who meets the requirements. Subsection 5(1) reads as follows:
5. (1) The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:
(i) 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
(ii) 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 deportation order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
Section 11 [as am. by SOR/94-442, s. 2] of the Regulations provides that when a citizenship application is filed the Registrar is responsible for causing the inquiries necessary for the application of the Act to be commenced. Section 11 of the Regulations provides:
11. (1) On receipt of an application made in accordance with subsection 3(1), 6(1), 7(1) or 8(1), the Registrar shall cause to be commenced the inquiries necessary to determine whether the person in respect of whom the application is made meets the requirements of the Act and these Regulations with respect to the application.
The inquiries referred to in section 11 are of three types:
(a) inquiries under subsection 5(1) to ascertain that applicants have permanent resident status;
(b) inquiries under paragraph 5(1)(f) concerning the declaration by the Governor in Council pursuant to section 20 [as am. by S.C. 1997, c. 22, s. 3] to the Canadian Security Intelligence Service (CSIS); and
(c) inquiries under sections 21 and 22 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 11; S.C. 1992, c. 47, s. 67; c. 49, s. 124] of the Act relating to the whether the person is under a probation order, is a paroled inmate or is imprisoned.
After completion of the inquiries commenced, the Registrar shall refer the applications to the citizenship judge for consideration in accordance with subsection 11(5) of the Regulations.
11. . . .
(5) After completion of the inquiries commenced pursuant to subsection (1), the Registrar shall
(a) in the case of an application and materials filed with a citizenship officer in accordance with subsection 3(1), or forwarded to the Registrar under subsection 3(3), request the citizenship officer with whom the application and materials have been filed or to whom they have been forwarded under subsection 3(5) to refer the application and materials to a citizenship judge for consideration; and
(b) in the case of an application and materials filed under subsection 6(1), 7(1) or 8(1), forward the application and materials to a citizenship officer of the citizenship court that the Registrar considers appropriate in the circumstances, and request the citizenship officer to refer the application and materials to a citizenship judge for consideration.
No time limit is provided for completing these inquiries.
Section 14 [as am. by S.C. 1995, c. 15, s. 23] of the Act sets out the procedure and time limits for processing the case once it has been referred to the judge for consideration.
14. (1) An application for
(a) a grant of citizenship under subsection 5(1),
(b) a retention of citizenship under section 8,
(c) a renunciation of citizenship under subsection 9(1), or
(d) a resumption of citizenship under subsection 11(1)
shall be considered by a citizenship judge who shall, within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application.
(1.1) Where an applicant is a permanent resident who is the subject of an inquiry under the Immigration Act, the citizenship judge may not make a determination under subsection (1) until there has been a final determination whether, for the purposes of that Act, a removal order shall be made against that applicant.
(1.2) The expressions "permanent resident" and "removal order" in subsection (1.1) have the meanings assigned to those expressions by subsection 2(1) of the Immigration Act .
(2) Forthwith after making a determination under subsection (1) in respect of an application referred to therein but subject to section 15, the citizenship judge shall approve or not approve the application in accordance with his determination, notify the Minister accordingly and provide the Minister with the reasons therefor.
(3) Where a citizenship judge does not approve an application under subsection (2), the judge shall forthwith notify the applicant of his decision, of the reasons therefor and of the right to appeal.
(4) A notice referred to in subsection (3) is sufficient if it is sent by registered mail to the applicant at his latest known address.
Thus, when the citizenship judge finds that the application meets the requirements, the Minister "shall" grant citizenship to any person who meets the requirements therefor. Accordingly, in the instant case, there is a public legal duty owed to the applicant where the requirements are met.
In the instant case, the applicant filed a citizenship application on August 7, 1995, and his application has still not been processed three years later.
The respondent contends that the Registrar cannot act as long as the inquiries have not been completed. Accordingly, there is no legal obligation to act as long as the investigation has not been concluded, and consequently issuance of mandamus cannot be justified.
On this point, the respondent bases his argument on Lee v. Canada (Secretary of State) and Registrar of Citizenship.7 In that case, the applicant Lee was seeking a writ of mandamus directing the respondent to proceed with the processing of his case as soon as possible. Lee had asked that his application be processed urgently, and this memorandum had been placed on his file. After obtaining the results of the RCMP investigation concerning his criminal record, the registry had forwarded the file to CSIS on April 11, 1986. On June 26, 1987, CSIS informed the registry that the investigation was still ongoing and that the results were not yet available. One year had passed since the applicant applied for citizenship. Jerome J. dismissed the application for mandamus, stating that the Registrar was not in a position to act as long as the investigation was ongoing:
On the basis of that information, the Registrar is not in a position to determine whether the applicant meets the requirements for the grant of citizenship specified in s. 5. On the contrary, while the CSIS investigation is ongoing, preliminary indications are that the applicant may be ineligible for citizenship. It would appear, therefore, that the respondent is acting precisely in conformity with her statutory obligation. The Registrar of Citizenship has not determined whether the applicant meets the requirements of the Act and is therefore under no statutory duty to refer the citizenship application to a citizenship judge. Indeed, in the face of existing information, it is difficult to see how the Registrar could permit the matter to get before a citizenship judge without offending the sections of the Act to which I referred above.8
Certainly, some types of investigations may delay processing of citizenship applications.
Can they, however, justify an application being indefinitely suspended? In my view, when an applicant prima facie meets the requirements listed in subsection 5(1) of the Act, and there is a demand for performance, the authorities involved have a duty to act. In the instant case, the record does not show that the applicant is under a deportation order and he is no longer the subject of declaration by the Governor in Council made pursuant to section 20.
It is too easy to argue, as does the respondent, that the Registrar has no legal obligation to act as long as the inquiries have not been completed. By that reckoning, an investigation could go on indefinitely and the Registrar would never have a duty to act. The difficulty lies essentially in the fact that there is no time limit provided in the Regulations for completing these inquiries. In fact, the source of the problem is a defective statutory framework. For one thing, the powers of the Registrar to direct that an investigation be conducted in order to ascertain that the requirements of the Act have been met are not subject to any temporal or pragmatic parameters, apart from the obligation to await completion of the inquiries provided for in section 11 of the Regulations, and for another, no time limits are placed on the powers of the investigators, in this instance CSIS. Given these circumstances, the processing time may extend well beyond the time required for conducting the investigation. At what point can that time be regarded as unreasonable?
The reasonableness of the time taken to perform a statutory obligation has been examined in several cases: Re Civil Service Association of Alberta, Branch 45 and Alberta Human Rights Commission et al.;9 Bhatnager v. Minister of Employment and Immig
In Alberta Human Rights Commission, the Alberta Supreme Court examined the question of whether a delay in performing a duty warranted issuance of a writ of mandamus. The Court dismissed the applicant's case on the ground that the delay was justified because another similar investigation and hearing was underway and the resopndent had proceeded reasonably in the performance of its duties, and the delay did not amount to a refusal to perform its duties.
From the reasons of the Court, it appears that three requirements 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 Bhatnager,12 which the applicant cited in support of his argument, the Federal Court examined an application for a writ of mandamus to direct the Minister of Citizenship and Immigration to process an application for permanent residence in Canada. In that case, processing had been delayed by investigations into the parties' bona fides. The Court granted the mandamus requiring that a decision be made, on the ground that the responsible authority had not adequately justified the delay. In that situation, unreasonable delay amounted to failure to decide. Mr. Justice Strayer stated:
The decision to be taken by a visa officer pursuant to section 6 of the Regulations with respect to issuing an immigrant visa to a sponsored member of the familiy class is an administrative one and the Court cannot direct what that decision should be. But mandamus can issue to require that some decision be made. Normally this would arise where there has been a specific refusal to make a decision, but it may also happen where there has been a long delay in the making of a decision without adequate explanation. I believe that to be the case here. The respondents have in the evidence submitted on their behalf suggested a number of general problems which they experience in processing these applications, particularly in New Delhi but they have not provided any precise explanation for the long delays in this case. While I would not presume to fix any uniform length of time as being the limit on what is reasonable, I am satisfied on the basis of the limited information which I have before me that a delay of 4 1/2 hears from the time the renewed application was made is unreasonable and on its face amounts to a failure to make a decision.13
When, as it is in this case, an investigation drags on beyond the normal time for this kind of investigation, it is my opinion that the Registrar may inform the investigator that he will consider the investigation to be concluded, unless he is informed, as soon as he considers appropriate, that there are serious reasons to justify continuing it. Unless CSIS indicates otherwise as to the importance of confidentiality, procedural fairness demands that the Registrar inform the applicant that an investigation is ongoing, delaying a decision on his citizenship application. In most cases, I do not believe that this kind of requirement could jeopardize the result of the investigation since, as in the instant case and in Lee,14 the applicant is in any event aware that there is an investigation, having brought an application for mandamus in the Federal Court. The applicant would then have an opportunity to initiate other proceedings before the body in question, inter alia through the complaint procedure set out in section 41 et seq. of the Canadian Security Intelligence Service Act,15 which provides:
41. (1) Any person may make a complaint to the Review Committee with respect to any act or thing done by the Service and the Committee shall, subject to subsection (2), investigate the complaint if
(a) the complainant has made a complaint to the Director with respect to that act or thing and the complainant has not received a response within such a period of time as the Committee considers reasonable or is dissatisfied with the response given; and
(b) the Committee is satisfied that the complaint is not trivial, frivolous, vexatious or made in bad faith.
To allow CSIS to delay the conclusion of its investigation indefinitely, and thereby prevent the Registrar from submitting the application to the citizenship judge, amounts, in my view, to usurping the powers conferred on the Registrar and the citizenship judge by the Act.
It is furthermore not surprising that the affidavit of the respondent's representative, Mr. Payette, refers to the practice of waiting for CSIS authorization in processing complaints. On this point, he says in his affidavit:16
[translation] 12. I have been informed by representatives of CSIS that the applicant's case is still being examined. To date, CSIS has never given its authorization in respect of the citizenship application filed by the applicant on August 7, 1995.
13. The applicant's citizenship application cannot be examined as long as CSIS has not given its authorization for that to be done.
In addition, the memoranda in the file reiterate that the application is suspended as long as "the clearance has not been finalized".17
The respondent referred to Mr. Payette's cross-examination18 in which he stated that what he meant was checks. He also referred to a memorandum in the file dated December 7, 1995, in which Mr. Payette, on behalf of Mr. Sabourin, told CSIS that processing of the case would be suspended while awaiting advice from CSIS.19
However, having carefully reread the transcript, it appears that Mr. Payette stated several times that he was talking about CSIS giving authorization, and not advice as provided in section 14 of the Canadian Security Intelligence Service Act:
14. The Service may
(a) advise any minister of the Crown on matters relating to the security of Canada, or
(b) provide any minister of the Crown with information relating to security matters or criminal activities,
that is relevant to the exercise of any power or the performance of any duty or function by that Minister under the Citizenship Act or the Immigration Act.
In my opinion, it is apparent on a balance of probabilities that CSIS has usurped the decision-making powers conferred on the Registrar and the citizenship judge. Furthermore, I am of the view that the applicant has satisfied the requirements that must be met in order for a writ of mandamus to be issued.
(1) There is a public legal duty to the applicant, which rests on the Registrar and the citizenship judge, to determine and process the application in accordance with the Act and the Regulations;
(2) first, the applicant's application satisfies the Act and the Regulations to the extent possible, and second, the time taken by CSIS is unreasonable and amounts to an implied refusal;
(3) in the instant case, the applicant has no other remedy.
CONCLUSION
This application for judicial review is allowed.
The Registrar shall inform CSIS that unless justification for continuing the investigation is provided as soon as the Registrar shall consider appropriate, the investigation will be considered to be closed.
If there are serious reasons to justify continuing the investigation, the Registrar shall then inform the applicant that the investigation is continuing and that processing of his application is suspended until the investigation is completed.
If there are no serious reasons or a reply is not received, the Registrar shall, on the assumption that the investigation is closed, forward the application to a citizenship judge for the citizenship judge to consider the application and decide it on the merits.
1 R.S.C., 1985, c. F-7 [as am. by S.C. 1990, c. 8, s. 4].
2 R.S.C., 1985, c. C-29.
3 R.S.C., 1985, c. C-46.
4 R.S.C., 1985, c. C-23.
5 ;Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.).
6 SOR/93-246.
7 (1987), 16 F.T.R. 314 (F.C.T.D.).
8 Id., at p. 318.
9 (1975), 62 D.L.R. (3d) 531 (Alta. S.C.).
10 [1985] 2 F.C. 315 (T.D.).
11 Supra, note 7.
12 Supra, note 10.
13 Supra, note 10, at p. 317.
14 Supra, note 7.
15 Supra, note 4.
16 Respondent's record, affidavit of Roger Payette, at paras. 12 and 13.
17 Exhibit P-13 to the affidavit of Mr. Conille.
18 Respondent's record, at p. 21.
19 Court's record, at p. 38.