Abdulahad v. Canada (Citizenship and Immigration), 2020 FC 174

Date: 20200130

Dockets: IMM-6616-19

IMM-6617-19

Citation: 2020 FC 174

Ottawa, Ontario, January 30, 2020

PRESENT: The Honourable Mr. Justice Pamel

Docket: IMM-6616-19

BETWEEN:

SALAHIDIN ABDULAHAD,

ZULIPIYE YAHEFU, KHADIJA SALAHIDIN [BY HER LITIGATION GUARDIAN ZULIPIYE YAHEFU], MERYEM SALAHIDIN [BY HER LITIGATION GUARDIAN ZULIPIYE YAHEFU], AND HEMZA SALAHIDIN [BY HIS LITIGATION GUARDIAN ZULIPIYE YAHEFU]

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

Docket: IMM-6617-19

AND BETWEEN:

KHALIL MAMUT, AMINIGULI AIZEZI, ABDULLAH KHALIL [BY HIS LITIGATION GUARDIAN AMINIGULI AIZEZI], NURULLAH KHALIL [BY HIS LITIGATION GUARDIAN AMINIGULI AIZEZI], AND NASRULLAH KHALIL [BY HIS LITIGATION GUARDIAN AMINIGULI AIZEZI]

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

ORDER AND REASONS

[1] The Applicants in both matters have filed respective motions in writing under Rule 369 of the Federal Courts Rules, SOR/98-106 [FCR].

[2] The Applicants in IMM-6616-19 are seeking:

An Order pursuant to Rule 14(2) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [FC Immigration Rules], directing the Respondent to produce the following documents on the premise that they are in the possession and control of the tribunal and are necessary for the proper disposition of the application for leave:

• (i) Notes concerning Mr. Abdulahad’s immigration interview on January 30, 2018;
• (ii) Communications between Immigration, Refugees and Citizenship Canada [IRCC], Canada Border Services Agency [CBSA], and/or Consulate General of Canada in New York [CGNY] relating to Mr. Abdulahad’s ongoing security screening;
• (iii) Communications and notes connected to the procedural fairness letter from the CGNY to Mr. Abdulahad on November 25, 2016, and any internal communication that addressed Mr. Abdulahad’s response to that letter on January 4, 2017, including the letter received by the CGNY (sender unknown) on August 25, 2016 concerning the status of Mr. Abdulahad’s status at the time and any communication that elicited or responded to the letter;
• (iv) Communications and notes that prompted the January 22, 2019 update from the IRCC that no further action would be taken on Mr. Abdulahad’s file; and
• (v) Communications that prompted the letter from the CGNY on November 25, 2019 requesting the competition [sic] of additional forms from Mr. Abdulahad.

[3] The Applicants in IMM-6617-19 are seeking:

An Order pursuant to Rule 14(2) of the FC Immigration Rules, directing the Respondent to produce the following documents on the premise that they are in the possession and control of the tribunal and are necessary for the proper disposition of the application for leave:

• (i) Emails, correspondence, notes, memorandums, and documents concerning the convoking and completion of Mr. Mamut’s immigration interview on January 30, 2018;
• (ii) Communications and documents between the IRCC and CBSA relating to Mr. Mamut’s ongoing security screening and reports on potential inadmissibility concerns produced thereafter;
• (iii) Communications and documents exchanged between the CGNY, Case Processing Centre in Edmonton, Case Processing Centre in Vegreville, and any other IRCC office relating to the ongoing processing of Khalil Mamut’s permanent residence application; and
• (iv) Emails, correspondence, notes, memorandums, and documents that prompted the fairness letter from the CGNY to Mr. Mamut on November 25, 2016.

[4] For simplicity, I will refer to both sets of documents the production of which are being requested as the “Documents”.

[5] In addition, the Applicants in both files further seek an Order pursuant to Rule 8(1) of the FCR for a 30-day extension beyond the disposition of this matter to allow them to perfect their respective applications for leave.

[6] The underlying proceedings are two applications for leave and for judicial review whereby the Applicants are seeking a prohibition order putting an end to the immigration officer’s continuing inadmissibility assessment involving Messrs. Abdulahad and Mamut, and for a mandamus order compelling the processing of Mr. Abdulahad’s and Mr. Mamut’s permanent residence applications which may have been suspended pending the admissibility review and thus, supposedly, unnecessary and unjustly delayed.

[7] I should mention that the Applicants are not relying on Rule 317 of the FCR and rightly so, as recourse to this rule, with few exceptions, presupposes that a decision which forms the subject matter of the application for judicial review has been issued. Here, no such decision has yet to be issued (Alberta Wilderness Association v Canada (Attorney General), 2013 FCA 190 at para 39).

[8] In response to a request pursuant to Rule 9 of the FC Immigration Rules, the Consulate General of Canada in New York issued, in relation to both matters, a letter dated November 13, 2019 confirming that no decision had yet been made in respect to the relevant applications for permanent resident visas for Messrs. Abdulahad and Mamut, and as such no reasons for decision exist.

[9] Rule 14 of the FC Immigration Rules states:

Disposition of Application for Leave

Décision sur la demande d’autorisation

14(1) Where

14(1) Dans l’un ou l’autre des cas suivants :

(a) any party has failed to serve and file any document required by these Rules within the time fixed, or

a) une partie n’a pas signifié et déposé un document dans le délai imparti, conformément aux présentes règles,

(b) the applicant’s reply memorandum has been filed, or the time for filing it has expired,

b) le mémoire en réplique du demandeur a été déposé, ou le délai de dépôt de celui-ci est expiré,

a judge may, without further notice to the parties, determine the application for leave on the basis of the materials then filed.

un juge peut, sans autre avis aux parties, statuer sur la demande d’autorisation à la lumière des documents déposés.

(2) Where the judge considers that documents in the possession or control of the tribunal are required for the proper disposition of the application for leave, the judge may, by order, specify the documents to be produced and filed and give such other directions as the judge considers necessary to dispose of the application for leave.

(2) Dans le cas où le juge décide que les documents en la possession ou sous la garde du tribunal administratif sont nécessaires pour décider de la demande d’autorisation, il peut, par ordonnance, spécifier les documents à produire et à déposer, et donner d’autres instructions qu’il estime nécessaires à cette décision.

(3) The Registry shall send to the tribunal a copy of an order made under subrule (2) forthwith after it is made.

(3) Le greffe envoie immédiatement au tribunal administratif une copie de l’ordonnance rendue en vertu du paragraphe (2).

(4) Upon receipt of an order under subrule (2), the tribunal shall, without delay, send a copy of the materials specified in the order, duly certified by an appropriate officer to be correct, to each of the parties, and two copies to the Registry.

(4) Dès réception de l’ordonnance rendue en vertu du paragraphe (2), le tribunal administratif envoie à chacune des parties une copie des documents spécifiés, certifiée conforme par un fonctionnaire compétent, et au greffe de la Cour deux copies de ces documents.

(5) The tribunal shall be deemed to have received a copy of the order on the tenth day after it was sent by mail by the Registry.

(5) Le tribunal administratif est réputé avoir reçu une copie de l’ordonnance le dixième jour après sa mise à la poste par le greffe

[Emphasis added.]

[Je souligne.]

[10] Rule 14 of the FC Immigration Rules is meant to apply in respect of Documents that a judge may consider required for the proper disposition of the application for leave. Although Rule 14(2) of the FC Immigration Rules is similar to Rule 317 of the FCR, the context in which they are to be applied are different; Rule 317 of the FCR allows a party to seek documentary disclosure while Rule 14(2) of the FC Immigration Rules allows a judge to request additional documents at the leave stage.

[11] The Applicants argue that the Documents are necessary for them to be able to perfect their respective applications for leave and for judicial review.

[12] I accept that to establish abuse of process on account of delay in an administrative law context, “delay, without more, will not warrant a stay of proceedings for abuse of process […] there must be proof of significant prejudice which results from an unacceptable delay” (Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307 at para 101 [Blencoe]).

[13] In fact, in assessing delay, the Supreme Court in Blencoe set out three factors to be considered, at paragraph 160:

As indicated above, the central factors toward which the modern administrative law cases as a whole propel us are length, cause, and effects. Approaching these now with a more refined understanding of different kinds and contexts of delay, we see three main factors to be balanced in assessing the reasonableness of an administrative delay:

(1) the time taken compared to the inherent time requirements of the matter before the particular administrative body, which would encompass legal complexities (including the presence of any especially complex systemic issues) and factual complexities (including the need to gather large amounts of information or technical data), as well as reasonable periods of time for procedural safeguards that protect parties or the public;

(2) the causes of delay beyond the inherent time requirements of the matter, which would include consideration of such elements as whether the affected individual contributed to or waived parts of the delay and whether the administrative body used as efficiently as possible those resources it had available; and

(3) the impact of the delay, considered as encompassing both prejudice in an evidentiary sense and other harms to the lives of real people impacted by the ongoing delay. This may also include a consideration of the efforts by various parties to minimize negative impacts by providing information or interim solutions.

[Emphasis added.]

(See also Chabadov v. Canada (Citizenship and Immigration), 2017 FC 73 at para 47).

[14] Although the Documents may well be relevant at the judicial review stage, I am not convinced that they are necessary for the disposition of the request for leave.

[15] I can certainly see how the Documents may assist in relation to factors 1 and 2 in Blencoewhen it comes time to consider the merits of the Applicants’ claim, however given the threshold for leave, I am not convinced that the Documents are necessary at this stage.

[16] In the event leave is granted, the Applicants would then have recourse to Rule 17 of the FC Immigration Rules, and possibly to Rule 317 of the FCRshould they be able to establishone of the exceptions where a decision-maker has not yet rendered a decision (Douze v Canada (Minister of Citizenship and Immigration), 2010 FC 1086).

[17] I, therefore, am not willing to grant the present request by the Applicants as regards documentary production.

[18] However, I do agree with both counsel that these two matters should be heard consecutively, by the same judge, pursuant to Rule 105(a) of the FCR. Both matters involve similar factual and legal issues, at the same stage of readiness, and with the same counsel (Cargill Limited v Canada (Attorney General), 2012 FCA 173).

ORDER in IMM-6616-19 and IMM-6617-19

THIS COURT ORDERS that:

1. The Applicants’ Rule 14(2) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules production requests are denied;

2. The Applicants shall have 30-days from the date of this Order to perfect their respective applications for leave and judicial review, pursuant to Rule 8(1) of the Federal Courts Rules [FCR];

3. Leave in both matters is to be considered concurrently by the same judge, and the applications for judicial review in both matters are to be heard one after the other before the same judge if leave be granted in both matters, pursuant to Rule 105(a) of the FCR;

4. This Order is without prejudice to any request for document production that may be made by either of the parties as may be permitted under the rules of this Court, or any other applicable rules; and

5. The whole, with costs in the cause in the event costs are ultimately ordered.

“Peter G. Pamel

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

IMM-6616-19

STYLE OF CAUSE:

SALAHIDIN ABDULAHAD, ZULIPIYE YAHEFU, KHADIJA SALAHIDIN [BY HER LITIGATION GUARDIAN ZULIPIYE YAHEFU], MERYEM SALAHIDIN [BY HER LITIGATION GUARDIAN ZULIPIYE YAHEFU], AND HEMZA SALAHIDIN [BY HIS LITIGATION GUARDIAN ZULIPIYE YAHEFU] v THE MINISTER OF CITIZENSHIP AND IMMIGRATION

AND DOCKET:

IMM-6617-19

STYLE OF CAUSE:

KHALIL MAMUT, AMINIGULI AIZEZI, ABDULLAH KHALIL [BY HIS LITIGATION GUARDIAN AMINIGULI AIZEZI], NURULLAH KHALIL [BY HIS LITIGATION GUARDIAN AMINIGULI AIZEZI], AND NASRULLAH KHALIL [BY HIS LITIGATION GUARDIAN AMINIGULI AIZEZI] v THE MINISTER OF CITIZENSHIP AND IMMIGRATION

MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES

ORDER AND REASONS:

PAMEL, J.

DATED:

January 30, 2020

APPEARANCES:

Prasanna Balasundaram

For The Applicants

Gregory George

For The Respondent

SOLICITORS OF RECORD:

Downtown Legal Services

Toronto, Ontario

For The ApplicantS

Attorney General of Canada

Toronto, Ontario

For The Respondent