if your immigration application is delayed…

Writ of Mandamus Applications

If the processing of your immigration application to Canada is significantly delayed and the delay is not reasonable, you may file an application for the Writ of Mandamus to compel IRCC to make a decision on your immigration application.

Unreasonably Delayed Applications

What is a Writ of Mandamus?

A writ of mandamus is a judicial remedy to compel a public authority to perform its duty under the law. In immigration law, a writ of mandamus can be sought when IRCC does not process the application within a reasonable time (meaning that there is an unreasonable delay in processing), or when there is an implicit refusal to process an immigration application. This can apply to various immigration programs in Canada, including Canadian Study Permits, Work Permits, Visitor Visas, and Canada PR applications.

Highly dependent on the facts

The success of a writ of mandamus is highly dependent on the facts of each case, the reasons, and the length of a delay.

significant & unreasonable

The posted IRCC expected processing times can be used as a guideline for assessing whether a delay is reasonable in the circumstances.

Exceptional remedy

A writ of mandamus should not be seen as a way to jump the queue. It is usually appropriate only when there is a significant and unjustified delay.

factors at play

The legal test for a writ of mandamus…

The Federal Court has established a detailed legal test to determine when a writ of mandamus can be issued. A writ of mandamus is a court order compelling a government official or entity to perform a duty that is mandated by law. This legal test is critical in the context of Canadian immigration law, where applicants may need to seek judicial intervention to compel action from immigration authorities.

There must be a public legal duty to act.

For a writ of mandamus to be issued, there must be a clear public legal duty that requires a government official or body to act. This means that the law explicitly mandates that the official or body must perform a specific action. For example, if the law requires an immigration officer to process an application within a reasonable timeframe, this constitutes a public legal duty.

The duty must be owed to the applicant.

The duty in question must be specifically owed to the individual seeking the writ of mandamus. In the context of immigration, this could be an applicant whose visa application is being processed by the IRCC.

There is a clear right to the performance of that duty.

The applicant must have fulfilled all necessary conditions or requirements that trigger the duty of the government official or entity, and there was:

  • a prior demand for the performance of the duty;

  • a reasonable time to comply with the demand unless refused outright;

  • a subsequent refusal which can be either expressed or implied, such as an unreasonable delay.

Where the duty sought to be enforced is discretionary, consideration must be given to the nature and manner of exercise of that discretion.

In cases where the duty involves some level of discretion on the part of the government official or body, the court will examine how that discretion is being exercised. The court will assess whether the discretion has been exercised fairly, reasonably, and in accordance with legal principles.

No other adequate remedy is available to the applicant

The applicant must demonstrate that there is no other sufficient remedy available. This means that other legal avenues to compel the performance of the duty have been exhausted or are not suitable.

The order sought will be of some practical value or effect.

The court will only issue a writ of mandamus if it will have a meaningful and practical impact. The order must result in the government official or body taking the required action, thereby resolving the applicant’s issue.

There is no equitable bar to the relief sought.

The applicant must not be barred from seeking the writ of mandamus on equitable grounds. Equitable grounds can include issues such as the applicant’s conduct or any unfair advantage they might gain from the order.

On a “balance of convenience,” an order of mandamus should be issued.

Finally, the court will consider the benefits and burdens of issuing the writ of mandamus. The court will determine whether issuing the order is appropriate and just in the circumstances, taking into account the potential impact on both the applicant and the government.

How long should you wait before filing for a writ of mandamus?

The appropriate waiting period before preparing a mandamus application in the context of Canadian immigration law depends on several factors, including the specific circumstances of your case and the nature of your immigration application. Some cases may warrant a shorter or longer waiting period based on the specific facts and the nature of the application (the reasonable delay for a TRV application would typically be much shorter, than for the Permanent Residence application).

Consider the typical processing times.

First, when evaluating whether the delay is unreasonable, you should consider whether your application has been pending significantly longer than the typical processing time without a clear explanation or response from the authorities. To have an accurate understanding of the typical processing time for a specific application type, you should check the expected or typical processing times on the IRCC’s website.

Are there any known delays or exceptional circumstances?

Second, if there are known delays due to exceptional circumstances, such as a backlog or pandemic-related disruptions, these should also be considered.

When was the last activity on your immigration application?

Third, before even considering a Mandamus application, you want to make sure there was a significant period of inactivity on your application, and that there is no justification for this delay. The best way to check the activity history on your Canadian immigration application is by submitting the ATIP Request and obtaining the GCMS notes on your application.

Make a formal request to IRCC before filing for Mandamus.

Fourth, before filing for Mandamus, it is essential to make a formal request to IRCC to take action on your immigration application. After making this formal request to the IRCC, you should wait for a reasonable period to allow the authorities to respond. While there is no fixed period, this could range from a few weeks to a few months, depending on the nature of your immigration application.

Our reputation is everything for us! We only proceed with cases that have a reasonable likelihood of success. Book a consult with a lawyer to assess whether you should prepare a Mandamus application.

How to speed up the processing of your immigration application by IRCC & prepare the application for a writ of mandamus?

A writ of mandamus can be obtained by filing an application for leave and judicial review at the Federal Court of Canada. There are strict requirements as it relates to the documents, filing, and service of another party. Due to the complexity, it is highly recommended to retain the services of an immigration lawyer.

 

STEP 1: Drafting a Letter of Demand

Send a Letter of Demand to the IRCC.

The goal is to seek the performance of the duty – namely, to render a decision on your immigration application. IRCC will assess the legal risk, and whether they should oppose the writ of mandamus. This will provide an opportunity for an immigration officer to examine your file before litigation.

We invest time and effort in drafting a strong Letter of Demand. In this letter, we clearly outline our intention of filing a writ of mandamus and demand that they process your application. We provide an overview of your personal situation and explain how you meet the legal test for Mandamus. We usually provide IRCC with 25 business days to continue the processing of your file before filing a Leave Application at the Federal Court.

The Letter of Demand is a good opportunity to present your case for a writ of mandamus and reach an agreement. If you have a strong case for a writ of mandamus and the Letter of Demand is well prepared, IRCC may decide to continue processing your case and render a decision to avoid further legal proceedings. When correctly prepared, the Letter of Demand may succeed. In this case, IRCC will continue processing your case, and you will not have to file an application for a writ of mandamus.

STEP 2: if a Letter of Demand does not bring the expected results

Filing a Leave Application at the Federal Court

If following the Letter of Demand, IRCC does not continue the processing of your immigration application within the 25-day period, we’d be proceeding with filing a Leave Application at the Federal Court.

This involves a formal process of filing a notice and serving the Department of Justice (DOJ). Next, we prepare and file a legal factum that outlines your personal situation and our legal arguments to obtain a writ of mandamus. We provide the supporting documents to substantiate our arguments. After we prepare our factum, the DOJ will provide their own legal factum. They will argue that the legal requirements for a writ of mandamus are not met, and will argue that the Court should not issue a writ of mandamus. 

 

Throughout the proceedings, we actively negotiate to settle. If IRCC agrees to process your case in a timely manner, we will discontinue the proceedings. If you continue to encounter unreasonable delays, another application can be filed at a later date. 

 

Leave Application

An application for a writ of mandamus needs to obtain leave from the Federal Court to proceed. In other words, you will need to obtain permission from the Federal Court before you continue with the writ of mandamus. A judge will review your application for judicial review, including the factums and supporting documents. They will either grant or reject the application for leave. It usually takes around one to two months for a decision to be made on leave and they do not provide reasons for the decision. If leave is accepted, a court date will be scheduled in the following three to four months. If leave is rejected, the application ends. There are no other steps that can be taken. You cannot appeal a decision on leave.

Hearing

A judge at the Federal Court will preside over a hearing. Both parties will have an opportunity to be heard, present their legal arguments, and discuss the evidence.

Decision

It can take 2 to 6 months to get a decision from the Federal Court. For complex cases, it may take much longer. The judge will provide reasons for the decision and make an order to either grant the writ of mandamus or dismiss the case.

How do we work with our clients to prepare Mandamus applications?

The first step in the process is to request the GCMS notes for your immigration application. This will allow us to assess whether you should proceed with writing a Letter of Demand to IRCC and subsequently apply for a writ of mandamus at the Federal Court.

If the GCMS notes indicate a significant period of inactivity on your file or there is an unreasonable delay in processing of your application, then we invest time and effort in drafting a strong letter of demand to the IRCC. We give IRCC some time to resume processing your application.

If IRCC does not continue the processing of your application, we file a Leave Application at the Federal Court to seek a writ of mandamus. While the application progresses through Court, we actively negotiate with the DOJ to settle the matter. Reaching an early settlement will save you time and money while getting the desired results.

Frequently asked questions

You probably still have many questions about Mandamus applications and other ways to speed up the processing of your immigration application to Canada...

We’ve got some answers for you here:

  • No, filing a mandamus will NOT adversely affect your immigration application. The IRCC does not punish applicants for using this legal remedy to address unreasonable delays. Canada upholds the rule of law, and a writ of mandamus is a legitimate tool for ensuring the timely processing of applications.

  • You should consider filing for a writ of mandamus if there has been an unreasonable delay in the processing of your application, and all other avenues to expedite the process have been exhausted.

  • The criteria include a public legal duty to act, the duty owed to the applicant, the applicant has met all conditions precedent, a prior demand has been made, and no other adequate remedy is available.

  • Generally, it is recommended to wait at least six months beyond the standard processing time for your application before considering a mandamus application. However, the waiting time could be shorter or longer, depending on the nature of your immigration application.

  • Common reasons include high application volumes, incomplete documentation, security checks, and background verification processes.

  • You will need to provide evidence of the delay, correspondence with IRCC, proof of the impact of the delay, and any other relevant documentation to support your case.

  • An unreasonable delay is typically when the processing time significantly exceeds the standard timeframes provided by IRCC without any valid explanation.

  • The court considers factors such as the length of the delay by IRCC, the impact on the applicant, the reasons for the delay, and whether all other remedies have been exhausted.

  • The process involves sending a letter of demand to IRCC, filing an application for leave and judicial review with the Federal Court, and presenting your case in court.

  • Delays due to security checks can be challenged, but the court will consider whether the checks are being conducted within a reasonable timeframe given the circumstances.

  • Alternatives include contacting your local MP, using the IRCC web form to request updates, and ensuring all your documentation is in order.

  • The main benefit is compelling IRCC to act on your application, potentially reducing stress and uncertainty associated with prolonged delays.

  • Ideally, IRCC will resume processing of your immigration application following the Letter of Demand. Alternatively, the matter can get settled before you have to appear for a hearing. If neither, the Letter of Demand nor the settlement offer brings the desired results attending the hearing at the Federal Court might be required.