2016 FCA 182, 2016 FCA 182

[2017] 1 F.C.R. 392 A-54-15 2016 FCA 182 Tarek Zaghbib ( Appellant ) v. The Minister of Public Safety and Emergency Preparedness ( Respondent ) Indexed as: Zaghbib v. Canada (Public Safety and Emergency Preparedness) Federal Court of Appeal, Pelletier, Near and Boivin JJ.A.—Calgary, May 24; Ottawa, June 15, 2016.

Citizenship and Immigration — Judicial Review — Federal Court Jurisdiction — Appeal from Federal Court decision dismissing appellant’s application for writ of mandamus directing respondent to investigate allegations of marriage fraud — Appellant marrying woman from Morocco — Application for permanent residence sponsored by applicant approved — Wife having no intention to live with appellant — Appellant complaining to Citizenship and Immigration Canada, Canada Border Services Agency (CBSA) of marriage fraud — Appellant not receiving confirmation that complaint would be investigated — Appellant obtaining leave to commence present application — CBSA officer subsequently informing parties that investigation closed — Officer stating insufficient evidence of wife’s inadmissibility — Federal Court holding, inter alia, application not justiciable matter, respondent under no public duty to act — Ruling balance of convenience not favouring granting of mandamus — Whether Federal Court erring in concluding that appellant’s complaint not justiciable; whether application for mandamus moot; whether some form of relief available to appellant — Federal Court erring in concluding application for mandamus not justiciable — Thrust of Immigration and Refugee Protection Act (Act), s. 72 misunderstood — Right to have matter judicially reviewed arising under Federal Courts Act , ss. 18 , 18.1 , not s. 72 — S. 72 not limiting access to judicial review granted by Federal Courts Act, s. 18.1 — Right to seek investigation not purely administrative matter — Not self-evident exercise of discretion as to when, how to launch investigation beyond judicial review — As to whether application for mandamus moot, record herein disclosing decision made — That decision not so bereft of any justification as to amount to refusal to act — Application thus moot — Appellant unable to obtain relief within framework of application before Federal Court — Returning matter to Federal Court effectively converting present application to application for judicial review seeking to set aside specific decision — Authorities on this question against such proposition — Certified question herein not arising on facts — Right to investigation of complaint of marriage fraud not dealt with — Court having no jurisdiction to hear appeal — Appeal dismissed.

This was an appeal from a Federal Court decision dismissing the appellant’s application for a writ of mandamus directing the respondent to investigate allegations that the appellant’s estranged wife committed

an act of marriage fraud. The appellant travelled to Morocco to marry a woman with whom he had developed an overseas relationship. He applied to sponsor her application for permanent residence, which was eventually approved. Once in Canada the appellant’s wife advised him that she had never loved him and had no intention of living with him. The appellant complained to Citizenship and Immigration Canada and to the Canada Border Services Agency (CBSA) that he was a victim of marriage fraud. The appellant’s wife left for Morocco and did not return.

The appellant did not receive confirmation that his complaint would be investigated. After the appellant’s application for leave to commence an application for judicial review seeking an order of mandamus was granted, a CBSA officer wrote to the parties informing them that the investigation was closed. In an affidavit, the officer stated that there was insufficient evidence to form the opinion that the appellant’s wife was inadmissible.

The Federal Court held, inter alia , that the appellant’s application was not a justiciable matter because the question of whether and how to investigate his complaint was not a determination order, measure or question arising from the Immigration and Refugee Protection Act (Act), and that even if the matter were justiciable, the application would fail because the respondent was under no public duty to act with respect to the appellant’s complaint in the time frame he experienced.

The Federal Court concluded its analysis by ruling that the balance of convenience did not favour the granting of an order of mandamus . The main issues were whether the Federal Court erred in law in concluding that the appellant’s complaint was not justiciable, whether the application for mandamus was moot, and whether some form of relief was available to the appellant. Held , the appeal should be dismissed. The Federal Court erred in law when it concluded that the appellant’s application for mandamus was not justiciable.

The focus on whether the appellant’s application was a decision, determination, order, measure or question arising under the Act betrays a misunderstanding of the thrust of

section 72 of the Act. That

section does not create a right to have a matter arising under the Act judicially reviewed. That right arises from sections 18 and 18.1 of the Federal Courts Act .

Section 72 simply imposes additional procedural requirements, in the immigration context, on the exercise of the right to seek judicial review. The words “any matter — a decision, determination or order made, a measure taken or a question raised — under this Act” are not intended to limit the access to judicial review granted by

section 18.1 of the Federal Courts Act but rather to ensure that they are given the broadest scope so as to include any matter, including “any question raised”. The question of whether the respondent has an obligation to investigate the appellant’s complaint is a matter arising under the Act and is amenable to judicial review. The Federal Court may have had in mind that some matters are so wholly administrative that they are not amenable to judicial review, as suggested in Jarada Alaa v. Canada (Public Safety and Emergency Preparedness) ( Jarada ).

Jarada is misleading in that the issue is not the administrative content of a particular act, or administrative efficiency, but the extent to which the applicant’s rights are affected. Here, the appellant was affected to the extent of his contingent liability. It cannot be said that his right to seek an investigation is a purely administrative matter. Nor is it self-evident that the exercise of the discretion as to when and how to launch an investigation is beyond judicial review.

In spite of the fact that the issue of mootness was apparently not raised in express terms, it was incumbent on the Federal Court to address the issue. The issue before the Court was the alleged failure of the respondent to make a decision, and the record disclosed that a decision was made. The Court could not ignore this. While the decision in this case, and the process leading to it, were far from ideal,

they were not so bereft of any justification as to amount to a refusal to act. The present application for mandamus was therefore moot. The appellant was unable to obtain relief within the framework of the application which was before the Federal Court. The effect ofreturning the matter to the Federal Court for consideration of whether the respondent’s decision was reasonable would be to convert whatbegan as an application for judicial review seeking mandamus to an application for judicial review seeking to set aside a specificdecision.

A change in the subject matter of the judicial review is essentially a new judicial review. What little authority there is on thisquestion is against the proposition that an application for mandamus can be converted into an application for judicial review of theresulting decision.

The certified question in this case, i.e. whether a writ of mandamus can be issued to compel the Minister of Public Safety and EmergencyPreparedness or the Canada Border Services Agency to investigate a complaint of marriage fraud made by a private citizen, did not ariseon the facts because at the time the case was heard, a decision had been made even though the respondent proceeded as though none had.Furthermore, the Federal Court dealt with the appellant’s application as one based on delay. The right to an investigation of a complaintof marriage fraud by a private citizen qua citizen was not dealt with.

It follows that the Court had no jurisdiction to hear this appeal. STATUTES AND REGULATIONS CITED Federal Courts Act, R.S.C., 1985, c. F-7, ss. 18, 18.1. Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, r. 9. Federal Courts Rules, SOR/98-106, r. 302. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 44, 72. CASES CITED APPLIED: Figueroa v. Canada (Foreign Affairs and International Trade), 2015 FC 1341; Farhadi v. Canada (Citizenship and Immigration), 2014FC 926. CONSIDERED: Chiasson v. Canada, 2003 FCA 155, 226 D.L.R. (4th) 351; Jarada Alaa v.

Canada (Public Safety and Emergency Preparedness), 2006FC 14; 1099065 Ontario Inc. (Outer Space Sports) v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 47,375 N.R. 368. REFERRED TO: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Dragan v. Canada (Minister of Citizenship and Immigration), 2003 FCT211, [2003] 4 F.C. 189; Apotex Inc. v. Canada (Attorney General), (FCA), [1994] 1 F.C. 742, (1993), 18 Admin. L.R.(2d) 122 (C.A.), affd (SCC), [1994] 3 S.C.R. 1100, (1994), 29 Admin. L.R. (2d) 1; Harelkin v.

University of Regina, (SCC), [1979] 2 S.C.R. 561, (1979), 96 D.L.R. (3d) 14; Canada (Military Prosecutions) v. Canada (Chief MilitaryJudge), 2007 FCA 390, 288 D.L.R. (4th) 544; Turmel v. Canada, 2016 FCA 9, 481 N.R. 139; Air Canada v. Toronto Port Authority,2011 FCA 347, [2013] 3 F.C.R. 605; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2S.C.R. 817, (1999), 174 D.L.R. (4th) 193; Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, 36 Imm. L.R. (3d)167; Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129; O’Brien v.

Canada (Citizenshipand Immigration), 2016 FCA 159, 48 Imm. L.R. (4th) 213. appEAL from a Federal Court decision (2015 FC 97, 474 F.T.R. 25) dismissing the appellant’s application for a writ of mandamusdirecting the respondent to investigate allegations that the appellant’s estranged wife committed

an act of marriage fraud. Appealdismissed. APPEARANCES Raj Sharma and Ram Sankaran for appellant. Maia McEachern and Shaun Mellen for respondent. SOLICITORS OF RECORD Stuart Sharma Harsanyi, Calgary, for appellant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment rendered in English by [1] Pelletier J.A.: Mr. Tarek Zaghbib appeals from the decision of the Federal Court, reported as 2015 FC 97, 474 F.T.R. 25 (theDecision) dismissing his application for a writ of mandamus “directing the Respondent to investigate allegations that Ms. MeriemErramani … has committed

an act of marriage fraud”: see appeal book (A.B.), at page 16. Ms. Erramani is Mr. Zaghbib’s estranged wife.The difficulty with this case is that between the time Mr. Zaghbib’s application was made and the time of the Federal Court hearing, theauthorities addressed Mr. Zaghbib’s complaint and decided to close their file. In the face of this decision, Mr. Zaghbib argued before theFederal Court that the respondent closed its file for the sole purpose of putting an end to his application which, he says, amounts to badfaith. He now seeks a new investigation. The Federal Court dismissed his application.

[ 2 ] In my view, the Federal Court came to the right conclusion but for the wrong reasons. I would therefore dismiss the appeal. I. FACTS [ 3 ] Mr. Zaghbib immigrated to Canada in 1999. In 2007, he mentioned to an acquaintance that he was looking for a wife; she suggested that he consider her cousin, Ms. Erramani, who lived in Morocco. Mr. Zaghbib made contact with Ms. Erramani by telephone and over a period of two years, he developed his relationship with her over through that medium. In November 2009, Mr. Zaghbib travelled to Morocco and on December 2, 2009, he and Ms. Erramani were married. [ 4 ] Mr.

Zaghbib returned to Canada later that month, leaving his new bride in Morocco. He promptly applied to sponsor her application for permanent residence. As part of that application, he signed a sponsor’s undertaking in which he assumed responsibility to repay any social assistance payments made to his wife during the three years following her becoming a permanent resident. [ 5 ] Ms. Erramani’s application for permanent residence was eventually approved. When she arrived in Calgary on November 26, 2011, she was met by Mr. Zaghbib and some of her cousins who live in Calgary. At the request of Ms.

Erramani’s cousins, Mr. Zaghbib agreed that she could spend her first night in Calgary with them. The next day, Ms. Erramani telephoned Mr. Zaghbib to advise him that she had never loved him and had no intention of living with him. That same day, Mr. Zaghbib attended at the local office of Immigration, Refugees and Citizenship Canada to make a complaint. Shortly thereafter, Mr. Zaghbib submitted a Tip Sheet to the Canada Border Services Agency (the CBSA) complaining that he was a victim of marriage fraud. [ 6 ] Mr.

Zaghbib did not hear anything further from his wife until June 2012, when she informed him that she had returned to Morocco but that she wanted to reconcile. She said she would return to Canada in November 2012 but she did not. Since then, there has been no communication between them. [ 7 ] In October 2013, Mr. Zaghbib’s lawyer wrote to the respondent seeking confirmation that Mr. Zaghbib’s complaint would be investigated, given that the latter was still liable under his sponsorship undertaking. Counsel did not receive the favour of a reply, with the result that Mr.

Zaghbib’s application for leave to commence an application for judicial review seeking an order of mandamus was filed in December 2013. Leave was granted in October 2014 and the matter was set down for hearing on January 13, 2015. [ 8 ] In the meantime, the CBSA wrote to the parties on January 27, 2014, apparently pursuant to rule 9 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93-22, as amended from time to time.

That rule provides that where the application for leave alleges that the written reasons of the tribunal have not been provided to the applicant, the tribunal shall either send the applicant the reasons for the decision or “an appropriate written notice”. The CBSA’s letter declared itself to be “the written notice” in the case. It set out the history of Mr.

Zaghbib’s complaint, indicated that the matter was assigned to a CBSA inland enforcement officer on December 16, 2011 and explained that competing priorities had interfered with the officer’s ability to complete an investigation of what was considered to be a low priority matter. [ 9 ] Subsequently, on November 17, 2014, the CBSA wrote to the parties again. This letter also advised that it was “the written notice” in the case. In the letter, Officer Martin, Acting Supervisor of Inland Enforcement, advised that the officer responsible for this file had retired in August 2014.

After reviewing the officer’s caseload, Officer Martin closed the investigation as it was determined that the CBSA would not be able to conduct an investigation within a reasonable time frame. I shall refer to this letter as the Martin Letter. [ 10 ] One week later, on November 25, 2014, Officer Martin swore an affidavit in support of the respondent’s position on the application for mandamus (the Martin affidavit) in which he deposed the following (A.B., at page 150): 4.

From my review of the file, I determined that there was insufficient evidence to proceed with a s. 44 report under the Immigration and Refugee Protection Act . This determination was based on the fact that the evidence that the marriage was not genuine consisted only of the uncorroborated allegation of the Applicant. 5. From my review of the file, I also decided to close the investigation for several reasons. Firstly, the investigation qualified as a low priority since it was non-criminal in nature.

Secondly, the investigation was three years old and I considered it unlikely that it would come to completion in the near future. If assigned to a new investigation officer, it would be balanced against his or her own investigative file load. A typical case load for an Inland Enforcement Officer consists of up to 100 investigations, most of which would qualify as higher priority than the present investigation. 6.

The investigation can be re-opened at any time if new evidence becomes available. [ 11 ] Reading these letters and this affidavit in context, it appears that the January 27, 2014 letter was a kind of status report as it simply sets out the status of the investigation and explains the lack of progress in concluding the matter. The Martin Letter, as supplemented by the Martin affidavit, appears to be intended to communicate the CBSA’s decision and disposition of the complaint. The decision was that there was insufficient evidence for the officer to form the opinion that Ms. Erramani was inadmissible. II.

THE DECISION UNDER REVIEW [ 12 ] After setting out the facts, the Federal Court framed the issue before it as follows (A.B., at page 7): Was it within the discretion of the CBSA to choose not to begin an investigation into the Applicant’s complaint, and should an order for mandamus be issued to compel the Respondent to commence an investigation in to the admissibility of the Applicant’s estranged wife pursuant to sections 40 and 41 of the IRPA? [ 13 ] The Federal Court identified reasonableness as the appropriate standard of review, relying upon the Supreme Court’s decision in Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190. [ 14 ] Before addressing the issue of mandamus , the Federal Court took note of counsel’s proposal for a remedy other than an order of

mandamus (Decision, at paragraph 19): During oral argument, counsel for the Applicant invited the Court to consider an alternative remedy to an order for mandamus, namely toorder the matter returned to the Officer’s superior for reconsideration in respect of whether or not to conduct an investigation and write asection 44 Report. That relief is not sought as part of this application, nor is it appropriate. This is not an application under the IRPA.[My emphasis.] [15] The Federal Court then turned to the seven criteria for the granting of an order of mandamus, as set out in the Federal Courtdecision in Dragan v.

Canada (Minister of Citizenship and Immigration), 2003 FCT 211, [2003] 4 F.C. 189, which, in turn, was based onthis Court’s decision in Apotex Inc. v. Canada (Attorney General), (FCA), [1994] 1 F.C. 742 (C.A.), affd (SCC), [1994] 3 S.C.R. 1100. [16] The Federal Court then held that Mr.

Zaghbib’s application was not a justiciable matter because the question of whether and howto investigate his complaint was not a determination order, measure or question arising from the Act and as a result, there was no basisfor an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (theAct), reproduced below: Application for judicial review 72

(1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or aquestion raised — under this Act is, subject to

section 86.1, commenced by making an application for leave to the Court. [17] The Federal Court then indicated, without more, that it did not agree with Mr. Zaghbib’s allegation of bad faith on the part of therespondent. [18] Acknowledging that since it had concluded that the matter was not justiciable, it was not necessary to deal with the issue ofdelay, the Federal Court nevertheless went on to consider that issue, one of the considerations in an application for mandamus.

Itaccepted the respondent’s submissions that prioritization of files was a necessary strategy employed by the CBSA to manage its officers’significant workloads. In light of all the circumstances, the Federal Court found that the Minister had reasonably exercised his discretionto best fulfill the requirements of his position and to promote the effective administration of the Act. [19] The Federal Court then went on to find that any order made by the Immigration authorities would have no practical effect,another of the considerations for the granting of an order of mandamus, since it appeared from Mr.

Zaghbib’s own affidavit that his wifewas no longer in the country. In addition, given the time it took to get his application on for hearing, the period during which Mr.Zaghbib was responsible for any social assistance received by his wife had expired. Such evidence as there was suggested that she hadnot, in fact, received social assistance, at least not in Alberta. [20] The Federal Court then held that even if the matter were justiciable, Mr.

Zaghbib would fail in his application for mandamusbecause the respondent was under no public duty to act with respect to his complaint “in the time frame he experienced”: Decision, atparagraph 29. Furthermore, while Mr. Zaghbib was directly affected by his wife’s status, he was not personally owed a duty ofinvestigation in the time which had elapsed in this case. The Federal Court’s view was that, while Mr.

Zaghbib was reasonably entitled toexpect that the government would enforce its own legislation, the delay in dealing with his application was not, in light of the CBSA’sworkload and priorities, outside the range of reasonableness. [21] The Federal Court concluded its analysis by ruling that the balance of convenience did not favour the granting of an order ofmandamus. [22] Finally, the Federal Court certified the following question at the request of the respondent: …. “Can a writ of mandamus be issued to compel the Minister of Public Safety and Emergency Preparedness or the Canada BorderServices Agency to investigate a complaint of marriage fraud made by a private citizen?” III.

ANALYSIS [23] The decision as to whether or not to grant an order of mandamus is a discretionary order: see Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561, at page 574; Canada (Military Prosecutions) v. Canada (Chief Military Judge), 2007 FCA390, 288 D.L.R. (4th) 544, at paragraph 35. As such, it is reviewable on a deferential standard except where it is based upon an error oflaw: see Turmel v. Canada, 2016 FCA 9, 481 N.R. 139, at paragraphs 9–12. [24] The parties approached the issues in this appeal from different perspectives.

The respondent focussed almost exclusively on theissue of the conditions for the granting of an order of mandamus, seeking to get a negative answer to the certified question. Counsel forMr. Zaghbib took a different tack. He attempted to put the Martin Letter and affidavit in the worst possible light so as to persuade thisCourt to grant his client a remedy.

Recognizing that he was constrained by the relief sought in the notice of application but obviouslyaware of the problem of mootness, he argued that some judicial flexibility was required to avoid the necessity of multiple proceedings inorder to secure some relief for his client. [25] In my view, the issues in this appeal are: 1- Did the Federal Court err in law in concluding that Mr. Zaghbib’s complaint was not justiciable? 2- Was Mr. Zaghbib’s application for an order of mandamus rendered moot by the Martin Letter and affidavit? 3- Were the Martin Letter and affidavit made in bad faith?

4- Is some form of relief available to Mr. Zaghbib in the context of the current application? 5- The certified question. 1. Did the Federal Court err in law in concluding that Mr. Zaghbib’s complaint was not justiciable? [ 26 ] In Chiasson v.

Canada , 2003 FCA 155 , 226 D.L.R. (4th) 351, Strayer J.A. summarized the doctrine of justiciability with admirable concision ( Chiasson , cited above, at paragraph 8): While the full scope of the justiciability doctrine need not be analyzed here in an appeal on a motion to strike, in my view a question is normally considered non-justiciable if there are no objective legal criteria to apply or no facts to be determined to decide the question, functions which normally are within the judicial role.

It may also be non-justiciable if some other branch of government is conspicuously more appropriate, in our constitutional system, to decide the matter. [ 27 ] This is not a case in which there are no objective criteria to apply or facts to be determined. Similarly, this is not a question which some other branch of government is conspicuously more appropriate to decide. This is not a case of non-justiciability. [ 28 ] While the Judge’s reasoning is not transparent, it appears that his finding that Mr.

Zaghbib’s complaint is not justiciable is a function of his conclusion that the decision as to whether or how to investigate is not a decision, determination, order, measure or question arising under the Act and therefore there was no basis for an application for judicial review under subsection 72(1) of the Act . [ 29 ] The focus on whether Mr. Zaghbib’s application was a “decision, determination, order, measure or question arising under the IRPA” betrays a misunderstanding of the thrust of

section 72 of the Act . That

section does not create a right to have a matter arising under the Act judicially reviewed. That right arises from sections 18 and 18.1 of the Federal Courts Act , R.S.C., 1985, c. F-7. [ 30 ]

Section 18 grants the Federal Court exclusive jurisdiction over judicial review of federal administrative action.

Section 18.1 provides that an application for judicial review may be brought “by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.” A matter includes an order or decision but it is not limited to decisions: see Air Canada v. Toronto Port Authority , 2011 FCA 347 , [2013] 3 F.C.R. 605, at paragraphs 24 and 25 . An allegation that a public officer has failed to discharge a duty imposed upon her by law is a matter which is amenable to judicial review. [ 31 ]

Section 72 simply imposes additional procedural requirements, in the immigration context, on the exercise of the right to seek judicial review. Subsection 72(1) provides that leave is required to commence an application for judicial review. It does not define when judicial review is available. The words “any matter — a decision, determination or order made, a measure taken or a question raised — under this Act ” are not intended to limit the access to judicial review granted by

section 18.1 but rather to ensure that they are given the broadest scope so as to include any matter, including “any question raised”. [ 32 ] I conclude that the question of whether the respondent has an obligation to investigate Mr. Zaghbib’s complaint is a matter arising under the Act and is amenable to judicial review. [ 33 ] The Federal Court may have had in mind that some matters are so wholly administrative that they are not amenable to judicial review. This line of reasoning is suggested by its reliance on Jarada Alaa v.

Canada (Public Safety and Emergency Preparedness) , 2006 FC 14 ( Jarada ), a case in which a letter setting the date for the applicant’s removal was the subject of an application for judicial review, without any attack on the removal order itself or without any request for a deferral of removal. The Court suggested that if every purely administrative act were subject to judicial review, public administration in Canada would grind to a halt: see Jarada , at paragraph 15 .

Jarada is misleading in that the issue is not the administrative content of a particular act, or administrative efficiency, but the extent to which the applicant’s rights are affected. In 1099065 Ontario Inc. (Outer Space Sports) v. Canada (Minister of Public Safety and Emergency Preparedness) , 2008 FCA 47 , 375 N.R. 368, also relied upon by the Federal Court, the Court dismissed an attempt to judicially review a purely clerical function, namely a letter proposing one or more dates when the parties might meet.

At paragraph 9 of the case, this Court held that if an administrative act does not “directly affect” someone, it is not subject to judicial review. [ 34 ] In this case, the purpose of the investigation requested by Mr. Zaghbib was to determine if he had been the victim of marriage fraud with whatever consequences that may have had for his rights under the Act and his sponsorship undertaking. He was affected to the extent of his contingent liability. It cannot be said that his right to seek that investigation is a purely administrative matter.

Nor, in my view, is it self-evident that the exercise of the discretion as to when and how to launch an investigation is beyond judicial review. [ 35 ] In my view, the Federal Court erred in law when it concluded that Mr. Zaghbib’s application for mandamus was not justiciable. 2. Was Mr. Zaghbib’s application for an order of mandamus rendered moot by the Martin Letter and affidavit? [ 36 ] It does not appear from the Decision that the issue of mootness was raised in so many words by the respondent, the party in whose interest it was to do so. On the other hand, it is clear from Mr.

Zaghbib’s counsel’s proposal for an alternative remedy that he was aware of the difficulty posed by the fact that the respondent had finally turned its mind to his client’s complaint and made a decision, a decision which he found unsatisfactory and made in bad faith. In light of this pleading and the tribunal record, the fact that the respondent had made a decision was clearly before the Court. [ 37 ] It is also before this Court when one reviews Mr.

Zaghbib’s notice of appeal in which he seeks a direction “that the Minister of Public Safety and Emergency Preparedness or the Canada Border Services Agency conduct a new investigation into the matter by a new Officer”: A.B., at page 1. Before there can be a new investigation, there must have been an “old” investigation. [ 38 ] In spite of the fact that the issue of mootness was apparently not raised in express terms, it was incumbent on the Federal Court to address the issue.

Where the issue before the Court is the alleged failure of the respondent to make a decision and the record discloses that a decision was made, a Court cannot ignore reality because one or the other of the parties chooses to do so.

[39] Mr. Zaghbib’s notice of application seeks the following relief: For an Order of Mandamus directing the Respondent to investigate allegations that Ms Meriem Erramani … has committed

an act ofmarriage fraud. [40] It appears from the portions of the Martin Affidavit quoted earlier in these reasons that Officer Martin turned his mind to thequestion of marriage fraud when he found that there was insufficient evidence to proceed with a

section 44 report. He made specificreference to the fact of Mr. Zaghbib’s uncorroborated evidence. He also considered the low priority of the investigation relative to otherinvestigative priorities and the likelihood that it would be completed in a timely manner. He also considered the amount of time passedsince the complaint was originally made. [41] I recognize that Mr. Zaghbib has something to say about the quality of this decision.

His counsel forcefully made the point that ifa timely investigation had been undertaken, the deficiencies which are now relied upon by the respondent would not have been an issue.That said, where the question is whether the respondent has done that which was sought in the application for an order of mandamus, theCourt’s role is not to inquire into the merits of the decision unless it is so devoid of merit as to amount to a disguised refusal to act. [42] While the decision in this case, and the process leading to it, are far from ideal, they are not so bereft of any justification as toamount to a refusal to act.

The delay in commencing the investigation is explained by the respondent’s allocation of limited resourcesand its prioritization scheme. Officer Martin did address his mind to the complaint and to the possibility of a report under

section 44 ofthe Act. He considered whether a timely resolution was likely. Without pronouncing myself as to whether the decision is reasonable ornot, it is sufficiently responsive to the request for an investigation to stand as a decision for the purposes of determining mootness in theapplication for mandamus. [43] As a result, I find that Mr. Zaghbib’s application for an order of mandamus is moot in light of the decision recorded in the MartinLetter and affidavit. 3. Were the Martin Letter and affidavit made in bad faith? [44] Counsel for Mr.

Zaghbib argued that the decision recorded in the Martin Letter and affidavit was made in bad faith for the solepurpose of putting an end to his application for mandamus. He points to the fact that the Martin Letter, while dated November 17, 2014,reports that the decision to close Mr. Zaghbib’s file was made October 17, 2014, two days after the Federal Court granted him leave tocommence his application for mandamus. [45] While I understand counsel’s suspicions, the normal reaction to the allegation that a decision has not been made is to make thatdecision.

The fact that a decision is made in response to an application for mandamus is not, in and of itself, evidence of bad faith. [46] In this case, the fact that the respondent apparently did not plead mootness at the hearing before the Federal Court tends toconfirm that the decision was not made solely for the benefit of disposing of the application for mandamus. If it had, counsel for therespondent would have argued that Mr. Zaghbib’s application was moot. For whatever reason, it appears that this did not happen.

Buteven if it had, the point made above would still hold, namely, an applicant who brings an application for mandamus to force a decisionmaker to make a decision cannot complain when the decision maker makes the decision before being ordered to do so by the Court. [47] I find that the respondent’s decision with respect to Mr. Zaghbib’s complaint was not made in bad faith. 4. Is some form of relief available to Mr. Zaghbib in the context of the current application? [48] I am aware that the dismissal of this appeal will force Mr.

Zaghbib to start from scratch if he wishes to challenge therespondent’s decision with respect to his complaint. He will have to obtain an extension of time to file his application for leave pursuantto paragraph 72(2)(

c) of the Act. Then he will have to obtain leave from the Federal Court to proceed with his application for judicialreview, which may or may not be granted. In order to obtain leave, he will have to incur the expense of preparing a new set of materialsfor use on the eventual application to set aside the respondent’s decision. Such a course of events seems perverse when one considersthat Mr. Zaghbib is already before the Court. [49] It is true that once a question is certified, the appeal before this Court (and the Supreme Court) is not limited to the certifiedquestion: Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at paragraph 12.Does this allow Mr. Zaghbib to argue before us that the respondent’s decision is unreasonable and ought to be set aside? That is a newquestion which was not raised as such at the argument of the appeal. The respondent did not defend the reasonableness of the decision,focussing as it did on the question of whether the Minister could be compelled to launch an investigation.

It is not open to us to set asidea decision whose reasonableness an issue was not before us. [50] Can we return the matter to the Federal Court for consideration of whether the respondent’s decision was reasonable? The effectof this would be to convert what began as an application for judicial review seeking mandamus to an application for judicial reviewseeking to set aside a specific decision. Since both are applications for judicial review, one could argue that this is a single ongoingapplication for judicial review, in which the relief sought changed in the course of the application.

The reality is a little more complex inthat not only is different relief sought but a different decision or matter is being reviewed. [51] A change in the subject matter of the judicial review is essentially a new judicial review. The language of subsection 72(1)requires leave for the commencement of an application for judicial review of any matter (“a decision, determination or order made, ameasure taken or a question raised”—note the use of the singular).

In the same vein, rule 302 of the Federal Courts Rules, SOR/98-106,stipulates that an application for judicial review shall be limited to a single order in respect of which relief is sought. To that extent, myearlier reference to “a single ongoing application for judicial review” is inapt. [52] What little authority there is on this question in the Federal Court is against the proposition that an application for mandamus canbe converted into an application for judicial review of the resulting decision: see Figueroa v. Canada (Foreign Affairs and International

Trade) , 2015 FC 1341 ( Figueroa ); Farhadi v.

Canada (Citizenship and Immigration) , 2014 FC 926 ( Farhadi ). [ 53 ] In Farhadi , the Federal Court held that the conversion of an application for mandamus into an application for judicial review of a decision was caught by the leave requirement in subsection 72(1) of the Act (see Farhadi , at paragraphs 19–23 ) while in Figueroa , the course of the proceeding together with the absence of a satisfactory record led the Court to refuse the applicant’s request that it judicially review the decision which resulted from the application for mandamus . [ 54 ] As a result, I am unable to see how we might provide Mr.

Zaghbib with relief within the framework of the application which was before the Federal Court. 5. The certified question [ 55 ] The jurisprudence of this Court is clear that it has no jurisdiction to hear an appeal unless there is a legitimate certified question before it. A legitimate certified question is one which was dealt with in the Federal Court’s reasons and which is dispositive of the appeal: see Zazai v. Canada (Minister of Citizenship and Immigration) , 2004 FCA 89 , 36 Imm. L.R. (3d) 167, at paragraph 12 ; Varela v.

Canada (Minister of Citizenship and Immigration) , 2009 FCA 145 , [2010] 1 F.C.R. 129, at paragraph 43 ; O’Brien v. Canada (Citizenship and Immigration) , 2016 FCA 159 , 48 Imm. L.R. (4th) 213, at paragraph 8 . [ 56 ] The certified question in this case did not arise on the facts because at the time the case was heard, a decision had been made even though the Minister, for reasons best known to him, proceeded as though none had. Furthermore, the Federal Court dealt with Mr.

Zaghbib’s application as one based on delay: “he is not owed any duty of investigation by the CBSA in the time frame he experienced”: see Decision, at paragraph 29. The right to an investigation of a complaint of marriage fraud by a private citizen qua citizen was not dealt with. [ 57 ] It follows from this that this Court has no jurisdiction to hear this appeal which as a practical matter means that the appeal must be dismissed. However, as the reasons set out above make clear, the appeal would have been dismissed even if the Court had jurisdiction to hear the appeal.

Why then write reasons which are obiter and, as such, have no precedential value? [ 58 ] The fact that a court is without jurisdiction to hear an appeal does not mean that it cannot, as a courtesy to the litigant, explain why the appeal would have failed in any event. Given the pressure on judicial resources, such a courtesy is not to be expected as a matter of course or even upon request. But there are cases where the circumstances are such that the interests of justice are advanced by providing a litigant with evidence that he has in fact been heard. In my view, this is such a case. The respondent and Mr.

Zaghbib were at cross-purposes before the Federal Court and before this Court. Unfortunately, the Federal Court did not address the real issue between the parties as it stood when they appeared before it. In the circumstances, I believe that Mr. Zaghbib is entitled to a more responsive decision than the one he got, a situation which I have attempted to remedy. [ 59 ] For all of these reasons, I would therefore dismiss the appeal. Near J.A. : I agree. Boivin J.A. : I agree.