When dealing with government bodies, individuals often face delays that can seem endless, particularly when waiting for critical decisions. One powerful legal remedy to address such delays is the writ of mandamus. This article explores what a mandamus application is, how it is used in the Canadian immigration process, and the steps involved in seeking this judicial intervention.
What is a Mandamus Application?
Mandamus, derived from the Latin phrase meaning "we order," is a prerogative remedy used by courts to compel a government body, tribunal, or public authority to perform a legal duty it is obligated to complete. When a public body has a legal obligation to make a decision and has delayed unreasonably, a court can issue a writ of mandamus to enforce the completion of that duty within a specified timeframe.
How is Mandamus Used in the Canadian Immigration Process?
In the Canadian immigration context, an applicant can file a mandamus application in Federal Court to pressure Immigration, Refugees, and Citizenship Canada (IRCC) into issuing a decision on a long-standing application that has experienced unreasonable delays. While the exact threshold for what constitutes an "unreasonable" delay can vary, it generally exceeds the average processing time listed by IRCC.
Mandamus can be applied across various application types, including permanent residence, temporary residence, citizenship, and criminal rehabilitation. The process begins with filing an Application for Leave and Judicial Review at the Federal Court.
Steps Involved in a Mandamus Proceeding
According to the Federal Court's test in Vaziri v Canada (MCI) 2006 FC 1159, the criteria include:
Obtaining a mandamus order is challenging, reserved for cases where the delay is extraordinarily long and significantly prejudicial to the applicant. However, when facing unreasonable delays and no other remedies are available, a mandamus application can be an effective tool to compel action from IRCC, alleviating prolonged uncertainty and stress.
Pros and Cons Summary
Pros:
What is a Mandamus Application?
Mandamus, derived from the Latin phrase meaning "we order," is a prerogative remedy used by courts to compel a government body, tribunal, or public authority to perform a legal duty it is obligated to complete. When a public body has a legal obligation to make a decision and has delayed unreasonably, a court can issue a writ of mandamus to enforce the completion of that duty within a specified timeframe.
How is Mandamus Used in the Canadian Immigration Process?
In the Canadian immigration context, an applicant can file a mandamus application in Federal Court to pressure Immigration, Refugees, and Citizenship Canada (IRCC) into issuing a decision on a long-standing application that has experienced unreasonable delays. While the exact threshold for what constitutes an "unreasonable" delay can vary, it generally exceeds the average processing time listed by IRCC.
Mandamus can be applied across various application types, including permanent residence, temporary residence, citizenship, and criminal rehabilitation. The process begins with filing an Application for Leave and Judicial Review at the Federal Court.
Steps Involved in a Mandamus Proceeding
- File the Notice of Application (NOA): The NOA outlines the relief requested, such as a decision within a specific period. It includes a history of the application and follow-ups made.
- Prepare and File the Application Record: This record contains the applicant’s affidavit, legal arguments, and other supporting materials. The Department of Justice (DOJ) may settle the case or contest the litigation if they believe the delay is justified.
- Prepare and File the Reply Memorandum: If the DOJ contests, they file a respondent’s record within 30 days. The applicant then has 10 days to file a reply memorandum, addressing the DOJ's arguments without introducing new ones.
- Leave Disposition by Federal Court Judges: The judge reviews all materials and decides whether to grant "leave" to the mandamus application. If leave is granted, an oral hearing is scheduled. If rejected, the process ends without the possibility of appeal.
- Oral Hearing at Federal Court: During the hearing, both parties present their arguments. The judge may give a decision immediately or take the matter under advisement, issuing a written decision later.
According to the Federal Court's test in Vaziri v Canada (MCI) 2006 FC 1159, the criteria include:
- IRCC must have a legal duty to decide the application.
- The duty must be owed to the applicant.
- The applicant must have made previous requests and allowed a reasonable response time.
- The delay must be unreasonable without adequate justification.
- No other adequate remedy must be available.
- The order sought must have practical value.
- There should be no equitable bar to the relief sought.
- An order of mandamus should be issued on a balance of convenience.
Obtaining a mandamus order is challenging, reserved for cases where the delay is extraordinarily long and significantly prejudicial to the applicant. However, when facing unreasonable delays and no other remedies are available, a mandamus application can be an effective tool to compel action from IRCC, alleviating prolonged uncertainty and stress.
Pros and Cons Summary
Pros:
- Provides a legal avenue to compel IRCC to make a decision.
- Can expedite the resolution of long-standing applications.
- Offers closure to cases stuck in indefinite delays.
- The process is complex and requires substantial legal knowledge.
- Success is not guaranteed and depends on meeting strict legal criteria.
- If leave is not granted, the application process ends without recourse.
But I wonder, is it risky to use this? Like, what if it backfires and the judge just says NO? 
Anyone here who’s ACTUALLY DONE IT and can share their experience?!
