- March 30, 2023
- Posted by: azimi
- Category: immigration
Find out about an option if faced with an extreme processing delay
The writ of mandamus is an order that a superior or federal court can make which involves requiring a tribunal to take action it refuses to take.
The Supreme Court of Canada has found that in matters of administrative delay, the appropriate remedy is to apply to court for an order of mandamus. Therefore, if faced with a delay in the processing of one’s immigration application, one may apply for an order of mandamus against the applicable government authority – The Minister of Citizenship and Immigration.
Before the Federal Court will exercise its discretion to issue an order of mandamus, however, an applicant must demonstrate a number of facts.
First, the applicant must show that the immigration officer had a duty to act and that the duty was owed to the applicant. A duty to act can be inferred from the immigration legislation and regulations. The applicable duty is owed to the applicant if the applicant submitted, and the IRCC received, the application and supporting documents plus application fee.
Next, a clear right to performance of the duty is provable by showing two main things. The applicant first must have met all of the conditions giving rise to the duty – in other words, have submitted all the required documents for the application. Then the applicant must have made a demand to the respondent to perform the duty and the respondent refused to comply with the demand after a reasonable time period.
The case law has recognized that the respondent’s refusal to process an application can be either explicit or implied. A refusal can be implied if the delay itself is unreasonably long. There are three factors that are considered in a court’s assessment of whether there has been unreasonable delay – whether the delay is longer than the nature of the process requires, whether the applicant and/or their counsel is responsible for the delay, and whether the respondent has provided a satisfactory justification for the delay. However, case law about the type of application that is in issue also provides important guidance.
Lastly, the applicant must also establish that there is no other adequate available to them; that an order of mandamus would be of some practical value of effect to them; that there is no equitable bar to the relief sought; and that the balance of convenience favors an order of mandamus.
Even if the court grants an order of mandamus, the court will not direct the respondent to decide a certain way on the immigration application. Rather, the order of mandamus would provide that, either immediately or within a short time period, the respondent shall make a final decision.
If the respondent decides to refuse the immigration application, that result can be challenged on a judicial review.
Azimi Law can assist in an application for mandamus by identifying relevant evidence, by researching pertinent case law, and by providing effective legal advocacy in support of the remedy.