Writ of Mandamus (Delay)

Mandamus Appeal

for Immigration Application Delays

A writ of mandamus can be a potential recourse if you are facing an unjustified delay in receiving a decision from IRCC (Immigration, Refugees and Citizenship Canada) regarding your immigration application like:

• Spousal or common-law sponsorship processing delay

• Parental sponsorship (PGP) processing delay

• Citizenship application delay

• Express Entry permanent residence application delay

• Federal Skilled Worker (FSW) processing delay

• Delays in processing of visitor visa / student visa / work permit

• Electronic Travel Authorization (ETA) processing delay

• Criminal rehabilitation application delay

Writ of Mandamus

• A writ of mandamus serves as a legal recourse to compel a public authority to fulfill its obligations under the law

• In the realm of immigration law, it becomes relevant when there’s an unjustifiable delay in processing an immigration application or an implicit refusal to process it.

• This remedy extends across various immigration programs, spanning from study permits to work permits, visitor visas, and permanent residence applications.

• Its efficacy hinges upon the specific details of each case, including the type of application, anticipated processing times, accountability for the delay, and the duration of the pending decision.

• Crafting a persuasive letter of demand and application is pivotal to effectively pursuing a writ of mandamus, as it ensures the presentation of robust arguments.

• With the immigration system grappling with mounting backlogs, leveraging a writ of mandamus can expedite the processing of both permanent residence and temporary resident applications like Visitor Visa, Study Permits or Work Permits that have languished in limbo.

The standard or legal test for a writ of mandamus developed by the Federal Court

• There must be a public legal duty to act.

• The duty must be owed to the applicant.

• A clear right to the performance of the duty: This implies that there is an unmistakable entitlement for the duty to be carried out as required by law or agreement.

• The applicant has satisfied all conditions precedent: Before the duty can be enforced, the applicant must fulfill all necessary prerequisites or requirements that trigger the duty’s existence.

• Prior demand for the duty’s performance: Before taking legal action, the applicant must have formally requested the fulfillment of the duty.

• Reasonable time to comply with the demand: Upon receiving the demand, the obligated party must be given a reasonable period to fulfill the duty unless an outright refusal is given.

• Subsequent refusal: If the obligated party refuses to comply with the demand, either explicitly or through unreasonable delay, this refusal serves as grounds for legal action.

• If the duty involves discretion, the manner and nature of its exercise must be considered.

• The applicant must not have adequate alternative remedy or satisfactory solutions.

• The requested order must have tangible usefulness.

• There must be no legal or moral obstacle to the relief requested.

• Mandamus order issuance depends on the “balance of convenience.”

• You can not seek a writ of mandamus if you are responsible for the delay, like failing to provide required documents.

Success of mandamus depends on two factors

• Unreasonable delay considers length, expected processing time, and resulting prejudice. Delays beyond expected processing times, affecting applicant’s livelihood, may be deemed unreasonable. Processing times serve as guidance but are not legally binding.

• Balance of convenience weighs delay against application circumstances.

Nonetheless IRCC may justify delays based on specific circumstances, like security checks with other countries, missing documentation etc.

Legal Process for a Writ of Mandamus

Step 1: Letter of Demand

• Draft a letter to the DOJ and the visa office, requesting a decision on your immigration application.

• This letter prompts IRCC to assess and potentially resume processing your case, avoiding litigation.

• Success may lead to an agreement without filing for a writ, saving time and money.

 

Step 2: Filing Application for Leave and Judicial Review

• If the demand letter does not work, file an application for leave and judicial review at the Federal Court.

• Serve the DOJ, prepare a legal factum outlining your case, and negotiate for settlement.

• Discontinue proceedings if IRCC agrees to resume processing.

Key Stages of Legal Process

• Leave Application: Obtain permission from the Federal Court to proceed. About 20% of immigration applications are granted.

• Hearing: Both parties present arguments and evidence before a judge, usually for three hours.

• Decision: The judge grants or dismisses the writ, with appeals rare and legal costs usually not awarded.

FAQs

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