Writ of Mandamus
If you are waiting for a decision from IRCC and the delay is unreasonable, a writ of mandamus may be the solution…
What is 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, when you experience an unreasonable delay, a writ of mandamus is sought to force IRCC to process your immigration application and render a decision.
A writ of mandamus can be sought when there is an unreasonable delay in processing an immigration application, or when there is an implicit refusal to process an application. This can apply to various immigration programs, including study permits, work permits, visitor visas and permanent residence.
It is an exceptional remedy that is highly dependent on the facts of each case. The strength of your case will depend on your application, expected processing times, whether you are responsible for the delay and how long you have been waiting for a decision.
A properly prepared letter of demand and application will be important to present your strongest arguments. The immigration system faces an increasingly large immigration backlog. If your application has been delayed for a period of time, a writ of mandamus for your permanent residence application or temporary resident application can assist in the processing.
What is the legal test for a writ of mandamus?
The Federal Court has developed the legal test for a writ of mandamus in case law.
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 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
No other adequate remedy is available to the applicant
The order sought will be of some practical value or effect
There is no equitable bar to the relief sought
On a “balance of convenience,” an order of mandamus should be issued.
If you are responsible for the delay, you cannot file a writ of mandamus. For example, if your application is pending because you have not provided a medical examination or provided an incomplete application, you cannot seek a writ of mandamus.
The writ of mandamus will most likely succeed or fail on two key factors: 1) whether it is an unreasonable delay and 2) whether, on a balance of convenience, an order of mandamus should be issued
Unreasonable delay: The length of the delay will be an important factor, especially when considering the expected processing time and the delay. The effect of the delay on the applicant and any resulting prejudice will be considered.
For example, if you are unable to work since IRCC has taken a considerable amount of time to process your work application and this is substantively beyond the expected processing times, this may be a factor that would deem the delay unreasonable.
While the processing times to process an application are not legally binding, they are providing an overview of expected and reasonable processing times.
Balance of convenience: The unreasonable delay will be weighed against all the circumstances in your application. Delays caused by COVID-19 have not been accepted by the Federal Court,[1] especially delays before and after the pandemic.
However, IRCC may be able to demonstrate that the delay is reasonable in your specific circumstances, such as a security check with another country.
What is the legal process for a writ of mandamus?
STEP 1: Send a letter of demand to the Department of Justice (DOJ) and the visa office.
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.
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. In other words, after the letter of demand, IRCC may start processing your case again.
We invest time and effort in drafting a strong letter of demand. The letter of demand is a good opportunity to present your case for a writ of mandamus and reach an agreement.
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. We have reached agreements and settled cases before litigation begins. This will save you time and money.
STEP 2: File an application for leave and judicial review for a writ of mandamus (if the letter of demand was not successful) .
An application for leave and judicial review for a writ of mandamus is a formal legal proceeding that you would be taking against IRCC to request that they process your case and render a decision. Through the legal proceedings, IRCC will be represented by a lawyer at the Department of Justice (DOJ). In these proceedings, you will be the applicant and the DOJ will be respondent. The whole process can take up to 12 months after you make an application at the Federal Court.
Here is a short overview of the legal process:
Letter of demand: We work together to draft a letter to IRCC and DOJ to ask them to process your application and render a decision. 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. We usually provide IRCC with 25 business days to continue the processing of your file before filing an application at the Federal Court.
Filing an application and perfecting the applicant’s record: We need to file an application for leave and judicial review at the Federal Court. This involves a formal process of filing a notice and serving the DOJ. Then, we prepare and file a legal factum which outlines your personal situation and legal arguments to obtain a writ of mandamus. We provide supporting documents to substantiate our arguments. After we prepare our factum, the DOJ will provide their own factum. They will argue the legal requirements for a writ of mandamus are not met, and they 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: 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.
Most applications fail at this stage. Around 20% of applications for leave are granted for immigration matters.[1] There are no statistics for mandamus applications.
Hearing: A judge will preside over a hearing. Both parties will have an opportunity to be heard, present legal arguments and discuss the evidence. In most cases, a hearing is scheduled for three hours.
Decision: It can take two to six months to have a decision. 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. In most cases, you cannot appeal a decision from the Federal Court. You must certify a question of general importance to appeal a decision in immigration law, and this requirement is rarely met. Lastly, in most cases, you cannot seek legal cost for the proceedings. There must be special reasons warranting an award of cost.[2]
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.
Our Approach
We collaborate with our clients. We meet with you to explain the process, explore our approach together, and prepare the strongest arguments.
We negotiate with DOJ throughout the proceedings. If we are able to reach an agreement with DOJ and IRCC, this will minimize legal fees, and your application may be processed quicker. We have experience with settling cases to avoid litigation, minimize fees and save time.
Our reputation is everything. We only proceed with cases that have a reasonable likelihood of success. Book a consultation with a lawyer to assess whether a writ of mandamus is appropriate for you.
Minimum legal fees
The legal fees [4] are dependent on the complexity of the case. You work directly with a lawyer - we do not hire law clerks, legal assistants or consultants. This avoids mistakes and allows our lawyers to make strong reconsideration requests.
We collaborate together to understand your case, explain the likelihood of success and develop a legal strategy. We will liaise with the DOJ and IRCC on your behalf and keep you informed. We try to settle our cases to minimize fees and delays.
Drafting a letter of demand | starting from $1000 + 5 % GST
Filing an application and perfecting the record at the Federal Court | starting from $3000 + 5 % GST
Preparing and attending a hearing at the Federal Court | starting from $2500 + 5 % GST
We bill on a step-by-step basis. You only pay for legal services that you need. It is recommended to be represented by an immigration lawyer with litigation experience. Applications for judicial review can be complicated.
The rules and deadlines are very important, and your application can be rejected for not abiding by these rules. Immigration consultants cannot make applications at the Federal Court. If you wish to represent yourself, the Federal Court has resources for self-represented individuals.[5]
List of References
[1] Djikounou v Canada (Citizenship and Immigration), 2022 FC 584 at para 16.
[2] For example, between January 1, 2022 to March 31, 2022, the Federal Court decided 1567 applications for leave, and only granted 301.
[3] Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22.
[4] Any disbursements would be additional to the legal fees. For example, the Federal Court has a registry fee of $50 to start an application.
[5] If you intend to be self-represented, we offer limited scope retainers to provide strategic advice, draft documents, and answer questions. These services would be charged at an hourly rate.