Tuesday, September 20, 2011

Dhondup—mandamus

Dhondup v. Canada (Citizenship and Immigration), 2011 FC 108 (CanLII)

Judge: Justice Near

Date heard: January 19, 2010

Date decided: January 31, 2011

Counsel for Dhondup: Geraldine Sadoway

Counsel for Minister: Michael Butterfield

Place of Hearing: Toronto, Ontario

The Applicant applied for a writ of mandamus to compel the Minister to make a decision on the application for temporary residence permits for his de facto dependents (paras. 1-3).

The Applicant was an ethnic Tibetan from India, who obtained refugee status in July 2002 and became a permanent resident in May 2003. He attempted to sponsor his wife, their daughter, and two children from an “alleged” previous common law relationship, Yonten and Yeshi (para. 4). These last two were the subject of the present application.

In July 2003, the sponsored family attended an interview, where an officer expressed doubt about the relationship between the Applicant and Yonten/Yeshi and requested DNA testing (para. 5). The Applicant was surprised to discover that he was not their biological father (para. 6). The children were therefore excluded, but the Applicant re-submitted the application on the basis that they were de facto family members (para. 7-8).  The Applicant was informed that the application was closed, filed an application for judicial review, and the case was settled with an undertaking from the Minister to re-consider (paras. 9-10). The new application was submitted May 2005 (para. 10).

At that point, confusion arose about the application, wherein the visa post seemed to assume that the Applicant intended to adopt the children (paras. 11-16). According to the Minister, the application—as children intended to be adopted—was finalized in June 2006 and there was an interview in November 2006 (paras. 16-17). The Applicant continued to attempt to clarify the matter, stating that among other issues, he could not afford to formally adopt the children (para. 18).

Further confused communications were exchanged between winter 2006 and summer 2008 (paras. 19-22). The Minister only became clear that the Applicant wanted the application processed as an H&C and not an adoption in June 2008 (para. 22-23). The Applicant could not obtain adoption from the Indian government because they found he was already the children’s legal guardian and parent (paras. 24-25).

Further communications continued to be exchanged between summer 2008 through winter 2010, with the Minister not understanding or ignoring the Applicant’s submissions (paras. 26-29). In September 2009, the Applicant made a formal request for TRPs (as opposed to the permanent residence) (paras. 27-29). The Minister continued to not understand the situation (paras. 29-33).

In the decision, Justice Near summarizes the case law on mandamus (paras. 35-36).

The Minister noted that the Applicant had never filed a death certificate for his wife, but Justice Near disregarded that argument since it was never brought to the Applicant’s attention until the court materials were filed (para. 39). He finds that the passage of additional time would be unlikely to clear up the Minister’s concerns (para. 40). The Minister argued that it cannot accept the Indian court’s finding that the Applicant is the children’s biological father, since this is not the case; however, Justice Near points out that the Indian court only said that the Applicant was the father (paras. 42-43).

Justice Near found that all conditions precedent were met (para. 44).

Justice Near then turned to the facts of the case, and found that the delay was indeed unreasonable (paras. 45-53). The Minister’s argument that there are special circumstances is no excuse, given the Applicant’s repeated submission of the accurate and material evidence and applications.

MANDAMUS ALLOWED

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