NAGY WAGDY MOHAMED METWALY MOBASHER Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2014 FC 399

Date: 20140430 Docket: IMM-4628-13 Citation: 2014 FC 399 Ottawa, Ontario, April 30, 2014 PRESENT: The Honourable Madam Justice Tremblay-Lamer BETWEEN: NAGY WAGDY MOHAMED METWALY MOBASHER Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 (the Act ) of the respondent’s failure to process and render a decision with respect to the applicant’s application for permanent residence in the investor category.

The applicant seeks an order of mandamus requiring the respondent to process and render a final decision on his application. I. FACTS [ 2 ] The applicant is a citizen of Saudi Arabia. His application for permanent residence in Canada under the investor category was received at the Canadian High Commission in London, United Kingdom (CHC) on March 22, 2010. The applicant’s wife and four children are included in the application. The applicant has not yet received a decision from the respondent. [ 3 ] In April 2010, the applicant received a letter from CHC informing him that his application had been received.

The letter indicated that the processing period at the time was estimated to be 12 to 18 months but that this was based on the current inventory of applications and that processing times may vary as a result of changes to the inventory.

The letter further indicated that CHC will send a list of required documents to be returned within four months. [ 4 ] On September 1, 2010, CHC sent a letter to the applicant requesting that the remaining supporting documents be submitted. [ 5 ] On November 25, 2010, CHC received from the applicant the remaining documents required to assess his application. [ 6 ] In February, 2012, the applicant’s immigration consultant wrote to CHC requesting an update on the status of the file. [ 7 ] On March 8, 2012, CHC informed the applicant that its workload had increased which impacted the usual processing times greatly, that applications were being processed in chronological order from the date of receipt, and that “it may be some time yet” to process his application. [ 8 ] On July 10, 2012, October 9, 2012, and February 26, 2013, CHC replied to enquiries from the applicant’s consultant informing him that the application was currently in a queue awaiting review, that processing delays continued, and that average processing time frames are based on an average only, and were not a guarantee. [ 9 ] On July 9, 2013, the application was paper screened and assigned to an immigration officer for review.

A.

Changes to the federal Immigrant Investor Program [ 10 ] Several important changes were made to the federal Immigrant Investor Program (IIP) after the applicant submitted his application, as detailed in He v Canada (Minister of Citizenship and Immigration) , 2014 FC 92 at paras 4-9 [ He ] and the six companion cases that follow. [ 11 ] Ministerial Instructions published on June 26, 2010 stated that investor permanent resident applications received after the coming into force of upcoming changes to the Immigration and Refugee Protection Regulations , SOR/2002-227 (the Regulations ) would be processed concurrently with the old inventory.

The Instructions also set an administrative pause on the acceptance of applications until the changes to the Regulations were made. [ 12 ] On December 1, 2010, subsection 88(1) of the Regulations was amended to raise the “investment” required for an investor candidate from $400 000 to $800 000. [ 13 ] The Operational Bulletin 252, published December 2, 2010, established a ratio for the processing of applications, providing that as a general rule, for every two “old” $400 000 applications received before December 1, 2010, the respondent must process one “new” $800 000 application received on or after December 1, 2010.

[14] The Ministerial Instructions published July 1, 2011 introduced a cap of a maximum of 700 new federal immigrant investorapplications to be considered for processing each year. [15] Finally, in the Ministerial Instructions published on July 1, 2012, a second administrative pause on accepting new immigrantinvestor applications was put into place, a pause that remains in effect to this date. II. ISSUE [16] The issue before this Court is whether the delay in processing this application is longer than the nature of the process requiresand whether there is a justification for the delay. III.

ARGUMENTS OF THE PARTIES [17] Both parties agree on the legal test for granting on order of mandamus as that set out in Apotex Inc v Canada (AttorneyGeneral), (FCA), [1994] 1 FC 742 (FCA), aff’d (SCC), [1994] 3 SCR 1100 [Apotex].

This test iswell-known and does not need to be repeated, as the present case turns on the nature of the delay in question. [18] The test for determining whether a delay is unreasonable in the immigration context is established in my decision in Conille vCanada (Minister of Citizenship and Immigration), (FC), [1999] 2 FC 33 at para 23 [Conille] as being: 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. [19] On the one hand, the applicant submits that paragraph 3(1)(

f) of the Act referring to prompt processing of applications andconsistent standards applies to the present case. It has been recognized that the respondent has a public duty to process and decideimmigration applications (Liang v Canada (Minister of Citizenship and Immigration), 2012 FC 758 at para 25 [Liang]). The delay in thetreatment of the applicant’s application, currently standing at 49 months, is unreasonable as it far exceeds what the nature of the processrequires (Conille).

The applicant underscores that no action has been taken on his file other than the opening of an envelope, acceptanceof the $400,000 investment as security to be held without interest, and the assignment of his file more than three years later. [20] The applicant distinguishes the present case from the facts in He. While in He, there were no processing time estimatesprovided, here the applicant was notified in 2010 that the estimated processing period was 12 to 18 months.

The applicant acknowledgesthat these representations were not unqualified; however, he submits that the representations made by the respondent on the delay itexpects to take to process the application constitute a valid indication of the normal delay required for the processing of applications ofthat nature (Liang at paras 28-31, 33, 37, 41).

Boiler-plate statements such as “or longer”, “several months after”, and “we cannot tell”should not be taken as insurance against an order of mandamus. [21] Further, the applicant argues that the respondent’s justifications for the delay cannot succeed, since they are of its ownmaking (Liang at paras 39, 40, 45; Esmaeili-Tarki v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 697 atparas 14, 15). Allowing such an excuse would be contrary to the rationale that one cannot plead one’s own turpitude.

The present casecan be distinguished from the “extraordinary situation” in Mazarei v Canada (Minister of Citizenship and Immigration), 2014 FC 322 atparas 25, 26 where the processing of applications was delayed by the political situations in Iran and Syria, and where there was evidencethat the respondent had taken measures to deal with the situation, including hiring 17 new staff members. [22] On the other hand, the respondent submits that the applicant has not shown that all of the requirements for the issuance of amandamus have been met in the present case.

The respondent has never refused to act on the application and has continuously done allthat it reasonably could to fulfill its obligation to process the application. The applicant’s application is in active process and has beenadvanced diligently, as seen from the fact that several steps in the process have occurred and his position in the queue of applications hasadvanced. The processing of the applicant’s file is thus far consistent with the processing of investor applications at CHC and the currentaverage processing time for such applications is 56 months.

Further, any longer than expected delay can be explained by the fact thatCHC has had to deal with increased inventory, backlog, and processing delays due to prevailing circumstances beyond its control. [23] The respondent further argues that no legitimate expectations of a certain processing timeline or a specific time for a decisionwere created nor proffered by the respondent. The estimate of a processing time of 12 to 18 months communicated to the applicant wasnot clear, unambiguous, and unqualified, was based on information at that time, and thus cannot serve to establish processing time in anyindividual case.

The introduction of concurrent processing of new applications by the Minister clearly increases the length of time theapplicant’s case will be outstanding, however these guidelines are entirely authorized by law. Being subject to such a wait does not givea person an action for mandamus (He at paras 28, 29; Vaziri v Canada (Minister of Citizenship and Immigration), 2006 FC 1169 at paras36, 37).

Granting this application for mandamus would in essence be to allow the applicant to jump the queue of all similarly situatedapplicants whose applications were filed before his, which would be fundamentally unfair (Agama v Canada (Minister of Citizenship andImmigration), 2013 FC 135 at paras 20-22 [Agama]). IV. ANALYSIS [24] The central question before this Court is that of determining whether the processing time of the applicant’s application isreasonable. With respect to the first factor in Conille, an evaluation of whether the delay in processing the application is longer than the

nature of the process requires must be informed by a full understanding of the larger immigration scheme ( Vaziri at paras 53-55 ). At para 55 of Vaziri , Justice Snider specifies, “It is inherent in the system, as currently constituted, that some PR applications are processed differently than others”. [ 25 ] In the present case, according to the September 20, 2013 affidavit of the Immigration Officer, CHC finalized approximately 162 federal business applications between January and August of 2013, 220 in 2012 and approximately 285 in 2011.

CHC’s current average processing time for federal investor applications is 56 months, according to the Immigration Officer’s February 24, 2014 affidavit. The applicant’s delay, which currently stands at 49 months, is thus in accordance with this average. [ 26 ] Here, the longer delay must be situated in the changes made to the IIP, including the enactment of a 2:1 processing ratio of old to new applications and a processing cap of 700 new applications per year.

Coupled with these changes, CHC has had to deal with an increased inventory of applications to be processed arising from several factors beyond its control: the spike in applications in the lead up to the regulatory changes of December 2010, the taking over of responsibility for the processing of investor applications from the Islamabad visa office, and the labour dispute resulting in the withdrawal of service by Foreign Service Officers.

Together, these circumstances serve as a reasonable explanation for the current backlog in processing applications, and thus satisfy the third part of the Conille test of a satisfactory justification for the delay. [ 27 ] I agree with my colleague Justice Richard Boivin at para 28 of his decision in He dealing with similar facts, where he stated, “The Court can understand that the applicant might be discontent with the current IIP scheme because of its place in the queue, but it was legally set out and implemented in full contemplation of the law, more particularly of the powers adopted by Parliament pursuant to the new

section 87.3 of the Act .” [ 28 ] In the present case, I am satisfied that despite a slow start, the processing of the application is currently proceeding at a normal pace, taking into account the changes to the IIP. As pointed out by the respondent, the applicant’s file is presently active.

It has advanced from being at the midpoint of approximately 200 applications that had been paper-screened and were awaiting review in September, 2013, to currently having 21 applications before it in the queue of paper-screened applications pending review. [ 29 ] In such a case, the intervention of the Court is not warranted, and would only result in the inequitable outcome of allowing this application to jump the queue ahead of other applications that are also awaiting processing but are ahead of the applicant in the queue ( Agama at paras 20, 21 ). [ 30 ] I am also not convinced that the respondent’s estimate of 12 to 18 months constituted the sort of “clear, unambiguous and unqualified” statement that would engage the doctrine of legitimate expectations ( Agraira v Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 at para 95 ; Canada (Attorney General) v Mavi , 2011 SCC 30 at para 68 [ Mavi ]).

In Mavi , Justice Binnie explained the meaning of this standard through a reference to the law of contracts, stating at para 69, “Generally speaking, government representations will be considered sufficiently precise for purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement.” [ 31 ] In the present case, the original estimate of 12 to 18 months was qualified with the statement that it was based on the current inventory of applications and that processing times may vary as a result of changes to the inventory.

Correspondence from the respondent in 2012 and 2013 notified the applicant that CHC had taken over the processing of applications from the Islamabad offices, resulting in a larger than normal volume of applications, and that it “may be some time yet” before the application is processed. The applicant was also informed that average processing time frames for applications are “based on an average only, and not a guarantee”. Furthermore, it is important to note that unlike in Liang , there is no processing estimate set out in the guidelines and regulations affecting the current application.

The respondent stating that the 2010 average processing time was 12 to 18 months does not give rise to a legitimate expectation of a certain processing time for the applicant, particularly given the changes to the IIP enacted since then. [ 32 ] For these reasons, the Court’s intervention is not warranted and the application for judicial review is dismissed. [ 33 ] Unlike in He , the applicant in the present case does not wish to have a question certified. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. No question is certified.

"Danièle Tremblay-Lamer" Judge FEDERAL COURT SOLICITORS OF RECORD

Docket: IMM-4628-13 STYLE OF CAUSE: NAGY WAGDY MOHAMED METWALY MOBASHER v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: april 9, 2014 REASONS FOR JUDGMENT AND JUDGMENT: TREMBLAY-LAMER J. DATED: april 30, 2014 APPEARANCES : Jean-François Bertrand For The Applicant Evan Liosis For The Respondent SOLICITORS OF RECORD : Bertrand, Deslauriers Avocats Inc. Barristers and Solicitors Montréal, (Québec) For The Applicant William F. Pentney Deputy Attorney General of Canada Montréal, (Québec) For The Respondent