Mandamus, or a ‘Writ of Mandamus’ means “we command” in Latin. Simply put, it is a command issued by a superior court to compel a lower court or an administrative body (a government officer/ ministry, agency, or corporation) to do or refrain from doing a specific act which that body is obligated to do under law or refrain from doing. Mandamus is used as a remedy by applicants to compel Immigration, Refugees, and Citizenship Canada (IRCC) to do a specific act.
One of the most common cases where mandamus is used is to compel IRCC to make a decision on an application where there has been an unreasonable processing delay. Over the years the jurisprudence of mandamus had been widely interpreted by the Federal Courts in Canada.
Prerequisites of filing a mandamus
Before a mandamus can be issued, there are certain prerequisites that have to be met. This criterion has been laid out in many cases by the Federal Court. In Dragan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 211 (CanLII), the court head that the following factors must be met before the mandamus can be issued:
- There must be a public legal duty to act.
- The duty must be owed to the applicant.
- There is a clear right to the performance of that duty, in particular:
- the applicant has satisfied all conditions precedent giving rise to the duty;
- there was
- a prior demand for performance of the duty;
- a reasonable time to comply with the demand unless refused outright; and
- a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.
- No other adequate remedy is available to the applicant.
- The order sought will be of some practical value or effect.
- The Court in the exercise of discretion finds no equitable bar to the relief sought.
- On a “balance of convenience” an order in the nature of mandamus should issue.
In most cases, all of the above prerequisites have to be met before a mandamus can be issued by the Federal Court. One of the most essential factors is to send a demand notice putting the officer on notice that if a decision is not made on the application, a mandamus will be commenced before the Federal court.
What is an unreasonable delay?
One of the most common questions that routinely comes up is what is an unreasonable delay that would warrant filing a mandamus. In Dragan, Mr. Justice Kelen opined that the issue of delay must be considered on a case-by-case basis and the circumstances surrounding each case. There is no specific time frame that would inherently lead to
Neglect to perform the duty or unreasonable delay in performing it may be deemed an implied refusal to perform. There are multiple precedents where mandamus has been granted against the Minister by this Court as a result of unreasonable processing delays in … immigration or citizenship matters….
What period of time would be considered too long to process an immigration file? In Bhatnager, supra, the delay was four and a half years; in Dee, supra, and in Bouhaik, supra, about four years; in Conille, supra, and in Platonov, supra, about three years. All those delays were considered unreasonable on the facts. The holdings did not, in the words of Strayer J. in Bhatnager, supra, at page 317, “fix any uniform length of time as being the limit of what is reasonable.” Justice MacKay in Platonov, supra, also expressly cautioned against such an approach at paragraph 10:Each case turns upon its own facts, and I am not persuaded that the jurisprudence in relation to this matter is particularly helpful, except to outline some parameters within which the Court has issued an order in the nature of mandamus where it has found there has been unusual delay which is not reasonably explained.
The particular effects of the delay and the particular prejudice it may cause have to be considered.
Dragan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 211 (CanLII) ¶¶ 54-56.
There is no specific time frame that should have lapsed, which would automatically ensure that the mandamus would be granted. It is the totality of circumstances that would determine if the delay was unreasonable, and thus a case fit for mandamus. In Conille v Canada (Minister of Citizenship and Immigration), [1999] 2 FC 33, three requirements were listed that must be met if a delay is to be considered unreasonable:
- the delay in question has been longer than the nature of the process required, prima facie;
- the applicant and his counsel are not responsible for the delay; and
- the authority responsible for the delay has not provided satisfactory justification.
Federal courts have also been reluctant to grant mandamus as it may bring about undesired consequences of favouring one application over the other. In Mersad v. Canada (Citizenship and Immigration), 2014 FC 543 (CanLII) Mr. Justice Mosley held:
I appreciate that mandamus is an individual remedy that should not be denied solely on the ground that others may be similarly affected. Nonetheless, the Court can’t ignore the obvious implications of favouring one applicant over others who are ahead of him in the queue.
Mersad v. Canada (Citizenship and Immigration), 2014 FC 543 at ¶ 25.
Whether a delay is unreasonable would have to be ascertained by each lawyer based on the specific circumstances of the case and circumstances surrounding the facts.
Mandamus and Permanent Residency Applications
Most cases seeking mandamus for the processing delays of a permanent residency application pertain to delays due to security screening. While dealing with processing delays of permanent residency applications where family unification or entering Canada to secure permanent residency status are often cited as reasons for seeking mandamus. The Federal Court has held that there is an alternative remedy available of obtaining a visitor visa, and thus, a mandamus would usually not be issued to process permanent residence applications.
In Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159 (CanLII, Madam Justice Snider held:
The Applicants contend that the only way for them to have “secure immigration status” is to have their applications finalized. The Respondent argues that the Applicants may take advantage of Temporary Resident Visas (TRVs) in order to reunite family members while the PR assessment process continues. These visas (often referred to as visitor visas) are obtained quickly and easily, they can be valid for fixed periods of time and they may be renewed. Our Court has found in past cases that temporary resident status, or its analogue under the repealed Immigration Act, can fulfil the objective of IRPA to reunite families (see Gupta v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1099 at para. 11 (T.D.) (QL); Zhang v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 529, 2005 FC 427, at para. 8).
As evidenced by the affidavits filed by the Applicants, the Applicants appear to premise their arguments on the desire to be reunited after many years apart. Through the use of TRVs, the father and son have at least one other way of being united. While the PR applications are being assessed, TRVs may provide interim relief
While I appreciate that the Applicants live with uncertainty while the PR applications are being resolved, and that TRVs do not provide the same security or rights as permanent resident status, the use of TRVs is an alternative that is adequate — albeit not perfect. There is no pressing need in this case that the rights vested by PR status be acquired as soon as possible.
Vaziri v. Canada (Minister of Citizenship and Immigration) at ¶ 60-62
Can delays due to COVID-19 be considered unreasonable?
There is not much jurisprudence available on processing delays resulting due to COVID-19. The Courts would be reluctant to interfere in delays that were caused as a result of an act of God, i.e. a natural hazard outside human control. However, in the limited cases that have come before the Federal Court, the courts have held that while COVID-19 could explain delays in processing, it would not excuse delays that occurred prior to the pandemic.
In Almuhtadi v. Canada (Citizenship and Immigration), 2021 FC 712 (CanLII), while granting a mandamus for an individual whose application had been in processing for over five years, Justice Ahmed held:
Finally, I find the COVID-19 pandemic does not fully explain IRCC’s delay. As noted by the Applicants, this reasoning is not applicable for the period leading up to March 2020, approximately 3.5 years after the Applicants submitted their application for permanent residency. In the absence of evidence to the contrary, COVID-19 also does not negate the Respondents’ decision-making capacity for the entirety of time subsequent to March 2020. The pandemic was undoubtedly disruptive, but governmental processes have slowly resumed and decisions are being made.
Almuhtadi v. Canada (Citizenship and Immigration), 2021 FC 712 at ¶ 47
Conclusion
While Mandamus remains one of the most effective tools a lawyer can use in situations where there has been an unreasonable delay in the processing of an immigration application, it should only be used as a last resort. Also, even if a mandamus application is granted by the Federal Court, it only mandates IRCC to made a decision and not a ‘specific’ decision. Applicants should be mindful that only lawyers licensed with a Provincial Law Society can appear and represent clients before the Federal Court and thus only lawyers are can provide opinions of whether the facts of a case are fit for an application for Mandamus. Consultants regulated by the ICCRC can neither appear nor represent clients before a Federal Court and can neither provide any opinions on whether an application for Mandamus should be filed.
TRACKING THE APPLICATION – The online IRCC portal does not accurately inform as to which stage the application is at, and therefore the only way to track your application is through GCMS notes / CBSA notes / CSIS notes. You can order your GCMS / CBSA / CSIS notes online.
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