Mandamus: Suing IRCC for Unreasonable Delay

What mandamus is — and is not

Mandamus is an old court remedy: an order directing a public body to carry out a legal duty. The Federal Courts Act lists it among the remedies the Federal Court can issue against a federal board, commission or other tribunal (s. 18(1)(a)), and s. 44 adds that a mandamus may be granted where the court considers it "just or convenient".

Where judicial review is sought, s. 18.1(3)(a) lets the Federal Court direct a federal body to take a step it has wrongly declined to take, or has "unreasonably delayed" taking. In immigration, mandamus is looked to when an application has been sitting with IRCC and no decision has been made.

What it does not do:

• It is not a route to a particular outcome. What a court may order depends on the case, and the decision that follows an order to decide can be a refusal.
• It is not the usual response to a refusal. A refusal is normally challenged by judicial review, which is a different proceeding.

The delay-related power in s. 18.1(3)(a) is aimed at a file that has gone undecided, for example one listed as "in progress" for a long time without explanation.

The legal test

The tests courts apply to mandamus come from case law, which this guide does not summarise. A lawyer can explain the current test and how the Federal Court has applied it.

What the statutes do provide is the framework around the application:

• The Federal Court is the court that can issue mandamus against federal bodies (Federal Courts Act, s. 18(1)(a)).
• For matters arising under the Immigration and Refugee Protection Act, judicial review is started by an application for leave to the Federal Court (IRPA, s. 72(1)).
• In a judicial review, the court may direct a federal body that has "unreasonably delayed" to act (Federal Courts Act, s. 18.1(3)(a)).
• A mandamus may be granted where it appears to the court "just or convenient", unconditionally or on terms the court considers just (Federal Courts Act, s. 44).

Whether a written request to IRCC to decide the file should come first depends on the facts, and a lawyer can advise.

When is delay "unreasonable"?

The statutory wording asks whether a body has "unreasonably delayed" (s. 18.1(3)(a)). Points that may be relevant include:

1. How long the file has been open compared with what the type of application normally takes
2. Whether the applicant contributed to the delay, for example through an incomplete form or an unanswered request
3. Whether IRCC has offered an explanation, and whether that explanation holds up

A file showing continuing work may be viewed differently from one that has simply sat. These questions are decided on the evidence in each case, and the weight given to any one factor depends on the case.

Whether hardship must be shown, and how much weight it carries, is also a point on which a lawyer should be consulted for the current position.

How long is long enough?

The statutes cited in this guide set no fixed threshold, so an advertised number of months does not settle the question. The assessment depends on the type of application and what the file shows.

Factors that may matter alongside elapsed time:

• Whether anything has happened at all — a file with no entry for a long stretch differs from one showing periodic activity
• Whether the delay is explained — a stock phrase repeated for years is not much of an explanation
• Whether the applicant contributed — an unanswered request for documents may count against the applicant
• The consequences — separated families, expiring status, dependants nearing the age limit, job offers lapsing

Security screening delays

Background or security screening can be one reason a file is slow, and the cause in a particular case can only be confirmed from the file itself.

Where a file is described as under ongoing checks for a long period, whether that justifies the delay is a question decided on the evidence filed.

If screening is suspected, the file notes obtained through an access-to-information request may show it; the GCMS notes guide explains how that request works.

What the process looks like

A mandamus application commonly moves through these stages, though the steps and their order depend on the case:

1. File review: GCMS notes are obtained, the timeline is reconstructed and responsibility for gaps is assessed
2. Written request: a letter asking IRCC to decide, with a reasonable time to respond
3. Court filing: an application filed in the Federal Court seeking an order that a decision be made. Where IRPA s. 72 applies, s. 72(2)(d) directs a judge to dispose of the application without delay and in a summary way
4. The Minister's response: IRCC may decide the file, answer the application, or both
5. Leave and hearing, where the matter proceeds
6. Order: if granted, the Court may direct a decision, on terms it considers just (Federal Courts Act, s. 44)

An application can end without a hearing if the file is decided after it is filed. Whether that happens depends on the file.

Is it worth it?

Facts a lawyer may see as relevant to an application:

• A long period past the usual timeframe with no activity on the file
• Repeated enquiries answered with the same standard wording
• Screening with no update for years
• Concrete consequences such as family separation, a dependant ageing out or expiring status

Facts a lawyer may see as weighing against one:

• A file only recently past the processing time
• A file showing active, documented work
• Delay linked to a request from IRCC that is still unanswered
• An application with a real risk of refusal, since a refusal is a decision

On that last point, if a file has real inadmissibility problems, an order to decide may lead to a refusal sooner. A lawyer can weigh that risk.