Our office was previously retained to represent a client before the Federal Court in an application for mandamus. Mandamus is an order from a court compelling the government to take action pursuant to a legal obligation to an interested party. Our client was the victim of marriage fraud. He sponsored his spouse to come to Canada and upon arrival and after having obtained permanent residence, his spouse informed our client she had no intention of residing with him and promptly abandoned him.
As a sponsor, our client had a three year sponsorship obligation in which time he would be liable for any social assistance obtained by his wife. After being informed by his wife, our client immediately informed the Canada Border Services Agency (CBSA) and requested that their office investigate his wife for misrepresentation. Instead of investigating the matter, the CBSA took no action on the file for several years. We were subsequently retained to request the Federal Court order the CBSA to conduct an investigation.
The Federal Court found merit in the application and granted leave for the case to be heard. Upon leave being granted the CBSA, instead of interviewing our client or his wife to look into the merits of the allegation of misrepresentation and marriage fraud, simply closed the file with no action taken. We alleged bad faith at the Federal Court and also submitted that the requirements for mandamus have been met. The Federal Court, after hearing oral arguments, dismissed the application indicating that the CBSA had no legal obligation to investigate a case of marriage fraud.
However, in so doing, the Federal Court has also certified a question to be heard by the Federal Court of appeal: Does a private citizen, through mandamus, have the right to compel the CBSA to investigate a complaint of marriage fraud? Our client has been through the gamut of emotions and now continues his odyssey, his quest, to seek closure.
The ramifications of this question are quite important, especially given that the Minister has made many public pronouncements about marriage fraud and their intent to seek out wrongdoers. Despite these pronouncements, the Minister had vigorously defended the CBSA's non actions in following up on an airtight complaint. It also has ramifications for the question of mandamus applications in general and in what circumstances the government has a legal obligation to act.
We will be filing our submissions in this matter shortly and will keep the blog updated on the outcome in this case.