Delayed Canadian Immigration Application? A Writ of Mandamus Could Help

Introduction

Undoubtedly, immigrating to a new country is a big and life-altering decision that takes much consideration and planning. While the choice to immigrate and begin a new life in a different country can be exciting, it can also be daunting as you will likely face many complex challenges. One of these concerns or challenges may be delays in processing your application. Delays lead to uncertainty and have a way of creating undue stress during an already stressful time. Thankfully, Pax Law Corporation is here to help. Submitting a writ of mandamus can assist in moving the process along and compelling Immigration, Refugee and Citizenship Canada (the “IRCC”) to perform its duty, process your immigration application and render a decision.

Immigration Application Backlogs and Processing Delays

If you have ever considered immigrating to Canada, you might know that Canada’s immigration system has recently faced significant delays and backlog problems. While most foreign nationals accept that immigrating to Canada will likely be a timely process and delays to processing standards are expected, backlogs and wait times have significantly increased over the last several years. Delays have been due to the unexpected COVID-19 pandemic and pre-existing issues with the IRCC, such as shortage of staff, dated technology, and lack of action by the Federal government to address the underlying structural problems.

Whatever the cause of the delay may be, Pax Law Corporation is equipped to assist our clients. If you are facing an unreasonable delay in processing your immigration application, follow this guide to receive more information on how a writ of mandamus could help, or contact us at Pax Law Corporation to see how we can help. 

What is a Writ of Mandamus?

A writ of mandamus is derived from English common law and is a judicial remedy or Court order issued by a Superior Court upon a lower court, government body, or public authority to perform its duty under the law.

In immigration law, a writ of mandamus can be used to ask the Federal Court to order the IRCC to process your application and render a decision within a specific timeframe. A writ of mandamus is an exceptional remedy that is highly dependent on the particular facts of each case and only be used where an unreasonable delay in processing has occurred.

The strength or success of your mandamus application will depend on the strength of your original application, the expected processing time for your specific application and the country from which you submitted your application, whether or not you held any responsibility for the processing delay, and finally, the length of time you have been waiting for the decision.

Criteria for Issuing a Mandamus Order

As we have mentioned, a writ of mandamus is an exceptional remedy and should be used as a practical tool only where the applicant has faced an unreasonable delay and has met the criteria or legal test set out in the Federal Court case law.

The Federal Court has identified eight (8) preconditions or requirements that must be met for a writ of mandamus to be granted [Apotex v Canada (AG), 1993 CanLII 3004 (FCA); Sharafaldin v Canada (MCI), 2022 FC 768]:

• there must be a public legal duty to act
• the duty must be owed to the applicant
• there must be a clear right to performance of that duty
  • the applicant has satisfied all conditions precedent giving rise to the duty;
  • there was
    • a prior demand for the duty of performance
    • a reasonable time to comply with the demand
    • a subsequent refusal, either expressed or implied (i.e. unreasonable delay)
• where the duty sought to be enforced is discretionary, certain additional principles apply;
• no other adequate remedy is available to the applicant;
• the order sought will have some practical value or effect;
• there is no equitable bar to the relief sought; and
• on a balance of convenience, an order of mandamus should be issued.

It is important to understand that you must first satisfy all conditions giving rise to the duty of performance. In short, if your application is pending because you have not submitted all required or requested documents or for a reason that is the fault of your own, you cannot seek a writ of mandamus.  

Unreasonable Delay

An important factor in determining whether you qualify for or should proceed with a writ of mandamus is the length of the delay. The length of delay will be considered in light of the expected processing time. You can check the processing time of your specific application based on which type of application you submitted and the location you applied from on the IRCC’s website. Please note that the processing times provided by the IRCC continually change and can be inaccurate or misleading, as they may reflect existing backlog.

Jurisprudence has set out three (3) requirements that must be met for a delay to be considered unreasonable:

• the delay in question has been longer than the nature of the process required; prima facie
• the applicant or their counsel are not responsible for the delay; and
• the authority responsible for the delay has not provided a satisfactory justification.

[Thomas v Canada (Public Safety and Emergency Preparedness), 2020 FC 164; Conille v Canada (MCI), [1992] 2 FC 33 (TD)]

Generally, if your application has been pending processing, or you have been awaiting a decision for more than twice the IRCC’s service standard, you may be successful in seeking a writ of mandamus. Moreover, while the processing times provided by the IRCC are not legally binding, they provide a general understanding or expectation for what will be considered a “reasonable” processing time. In sum, each case must be assessed individually, based on the facts and circumstances and no hard and fast answer for what constitutes an “unreasonable” delay exists. For more information about whether a writ of mandamus is right for you, call Pax Law Corporation for a consultation to discuss your case.

Balance of Convenience

When assessing the unreasonableness of the delay in question, the Court will weigh this against all circumstances in your application, such as the effect of the delay on the applicant or if the delay is a result of any bias or has resulted in any prejudice.

Furthermore, while the COVID-19 pandemic did cause detriment to government operations and processing times, the Federal Court has found that COVID-19 does not negate the IRCC’s responsibility and decision-making capacity [Almuhtadi v Canada (MCI), 2021 FC 712]. In sum, the pandemic was undoubtedly disruptive, but government operations have slowly resumed, and the Federal Court will not accept the pandemic as an explanation for unreasonable delays on behalf of the IRCC.

However, a common reason for delays is security reasons. For example, the IRCC may have to inquire about a security check with another country. While background and security and security checks may be a necessary and important requirement under the governing legislation and justify a more lengthy delay in processing visa or permit applications, a supplementary explanation will be required where the Respondent relies on security concerns to justify the delay. In Abdolkhaleghi, the Honourable Madam Justice Tremblay-Lamer cautioned that blanket statements such as security concerns or security checks do not constitute adequate explanations for unreasonable delay. In short, security or background checks alone are an inadequate justification.

Starting the Process – Book a Consultation Today!

We must emphasize the importance of ensuring your application is complete and free of obvious issues before seeking a writ of mandamus.

Here at Pax Law, our reputation and quality of work are of utmost importance. We will only proceed with your case if we believe there is a likely chance of success before the Federal Court. To start the mandamus process in a timely manner, we ask that you review the documents you submitted with your initial immigration application, ensure that they are free from obvious errors or mistakes, and promptly forward all documents to our office.

For more information on how Pax Law can help with your mandamus application or any other issues you may face during immigration to Canada, contact the immigration law experts at our office today.

Please note: This blog is not meant to be shared as legal advice. If you wish to speak to or meet with one of our legal professionals, please book a consultation here!

To read more Pax Law court decisions in the Federal Court, you can do so with Canadian Legal Information Institute by clicking here.