Mandamus (delays)

Unreasonable delays to immigration applications: file a writ of mandamus in Federal Court - a lawyer's perspective.

Delayed immigration application : file a mandamus

A mandamus application is a judicial process to ensure timely action from public authorities. The legal term is a “writ of mandamus.” This legal remedy compels the government to fulfill their obligations under the law.

When you find yourself facing unreasonable delays in your immigration application process, seeking a writ of mandamus becomes essential to force Immigration, Refugees, and Citizenship Canada (IRCC) to process your application and make a decision.

When to Seek a Mandamus

A writ of mandamus can be pursued in situations where there are undue delays in processing your immigration application or when there's an implied refusal to move your case forward.

This applies across various immigration programs, including study permits, work permits, visitor visas, and permanent residence applications. This includes delays due background checks, eligibility and other types of delays, as long as you are not responsible for the delay.

Case-Specific Solution

It's important to note that the effectiveness of a writ of mandamus depends on the unique circumstances of each case. Factors that influence its strength include the specifics of your application, the standard processing times, whether any delays are attributable to you, and the duration of your waiting period for a decision.

Usually, a mandamus application is filed when your application is pending for more than the processing times. There is no hard and fast rule, but it usually means at least more than 1.5 times the processing times. For example, at the time of application, if the expected processing time was 8 weeks, a mandamus will usually be filed after 12 weeks – but this is highly dependent on the facts of your case.

Crafting a Persuasive Application

To maximize your chances of success, meticulous preparation of your demand letter and application is crucial. It's worth highlighting that the Canadian immigration system is grappling with a growing backlog of applications. If your application has been stuck in limbo for an extended period, seeking a writ of mandamus can prove instrumental in getting a timely decision on your permanent residence or temporary resident application.

Don't let unreasonable delays hinder your Canadian immigration journey. The writ of mandamus is a legal tool that can ensure your application receives the attention it deserves. When expertly navigated, it can be the key to unlocking the doors to your Canadian dream.

For tailored guidance and assistance in navigating the intricacies of immigration law, Marin Immigration Law is here to help. Contact us today to discuss your specific situation and explore your options for a smoother immigration process.

Where do you file a writ of mandamus?

You file a writ of mandamus in the Federal Court of Canada.

How long does it take for my application to be processed after filing a writ of mandamus?

The timeline varies. In certain instances, the application could swiftly resume processing, potentially within a month. This expedited response may occur due to a settlement reached by the Department of Justice, representing IRCC in legal matters, or IRCC opting to process your immigration application promptly following the filing of the mandamus to circumvent legal proceedings. In other cases, it could take more than 6 months if an order from a judge is required.

What is the legal test for a writ of mandamus?

  1. There must be a public legal duty to act
  2. The duty must be owed to the applicant
  3. There is a clear right to the performance of that duty, in particular
  4. The applicant has satisfied all conditions precedent giving rise to the duty
  5. There was (a) A prior demand for the performance of the duty (also known as a letter of demand), (B) A reasonable time to comply with the demand unless refused outright, (C) A subsequent refusal which can be either expressed or implied, such as an unreasonable delay, (D) Where the duty sought to be enforced is discretionary, consideration must be given to the nature and manner of exercise of that discretion
  6. No other adequate remedy is available to the applicant
  7. The order sought will be of some practical value or effect
  8. There is no equitable bar to the relief sought
  9. On a “balance of convenience,” an order of mandamus should be issued.

Determining Eligibility for a Writ of Mandamus in Immigration Cases

In the realm of immigration law, eligibility for a writ of mandamus usually hinges on two key factors.

Unreasonable Delay: The length of the delay plays a pivotal role, especially when compared to the expected processing time. Additionally, the impact of the delay on the applicant and any resulting disadvantages are considered. For instance, if IRCC's prolonged processing of your work application prevents you from working beyond the anticipated timeframes, this could qualify as an unreasonable delay.

Balance of Convenience: The evaluation of unreasonable delay takes into account all circumstances in your application. Notably, delays attributed to COVID-19 are generally not accepted by the Federal Court, particularly those occurring both before and after the pandemic. Nevertheless, IRCC may present valid arguments demonstrating the reasonableness of the delay in specific situations, such as security checks with another country.

Prejudice: In a recent court decision, the Federal Court emphasized that the delay must have resulted in prejudice to the applicant. This prejudice can manifest in various ways, such as incurring additional costs for redoing medical examinations, experiencing heightened stress and anxiety due to the suspension of your life plans, disruptions to your children's education, or any other significant adverse effects arising from the delay. In a new series of cases, it is important demonstrate how the delay has directly impacted your life and prospects, underlining the urgency of seeking a writ of mandamus when faced with unreasonable delays in the immigration process.

You cannot be responsible for the delay

It's crucial to note that if you are responsible for the delay, typically due to incomplete documentation or unfulfilled requirements like a medical examination, seeking a writ of mandamus may not be an option.

While processing times for applications are not legally binding, they provide a framework for assessing what constitutes a reasonable delay. If you believe you meet the criteria for a writ of mandamus, it's advisable to consult with legal experts like Marin Immigration Law to navigate the complexities of your immigration case effectively.

What is the process to file a mandamus application?

A mandamus application often requires a strategic legal approach. In this two-step process, we explore the path to securing a writ of mandamus and getting your application back on track. Step one involves sending a persuasive letter of demand to the relevant authorities, while step two entails filing a formal application for leave and judicial review in the Federal Court if the initial demand does not succeed. The journey includes crucial stages such as negotiation, seeking leave, hearings, and, ultimately, a decision. This comprehensive guide outlines the steps, potential outcomes, and the importance of expert legal counsel to navigate this intricate process effectively.

Step 1: Send a Letter of Demand to the DOJ and Visa Office

In this initial step, the goal is to prompt the authorities to fulfill their duty of rendering a decision on your immigration application.

In theory, the Immigration, Refugees, and Citizenship Canada (IRCC) will assess the situation, considering the legal risks and whether they should contest the writ of mandamus. This presents an opportunity for an immigration officer to review your case before litigation begins.

If your case is strong and the demand letter is well-prepared, IRCC may decide to resume processing your application, aiming to avoid legal proceedings. In essence, the letter of demand can trigger the resumption of processing.

Crafting a well-structured letter of demand is a crucial investment of time and effort. It serves as an effective platform to present your case for a writ of mandamus and potentially reach a resolution without resorting to litigation. Successful demand letters have resulted in agreements that save both time and money for applicants, but they are less frequent.

Step 2: File an Application for Leave and Judicial Review for a Writ of Mandamus (if the Letter of Demand was Not Successful)

If the letter of demand does not yield the desired outcome, the next step involves initiating a formal legal process. This process entails filing an application for leave and judicial review against IRCC to compel them to process your case and make a decision. During these proceedings, IRCC will be represented by a lawyer from the Department of Justice (DOJ), while you will be the applicant.

The entire process, from application filing to resolution, can take up to 12 months in the Federal Court.

Here's an overview of the legal process:

  • Filing an Application and Perfecting the Applicant's Record: This phase involves formally filing an application for leave and judicial review in the Federal Court. It includes the process of filing a notice and serving the DOJ. Subsequently, you prepare and submit a legal factum, outlining your personal circumstances and legal arguments for obtaining a writ of mandamus. Supporting documents are provided to substantiate your arguments. The DOJ responds with its own factum, opposing the issuance of a writ of mandamus.
  • Negotiation and Settlement: Throughout the proceedings, negotiations to settle the case actively take place. If IRCC agrees to process your case promptly, the legal proceedings can be discontinued. If unreasonable delays persist, the option to continue the application and seek leave is valid.
  • Leave: Before proceeding with the writ of mandamus, permission from the Federal Court, known as "leave," must be obtained. A judge reviews your application for judicial review, considering factums and supporting documents. The judge either grants or rejects the application for leave. This decision-making process usually takes one to two months, with no reasons provided for rejections. If leave is granted, a court date is scheduled within the following months.

What happens if leave is rejected?

If leave is denied, the application concludes, and there is no avenue for appeal.

What is the chance that a mandamus is approved?

This is highly case specific. Many applications are settled or discontinued before this stage if there is a settlement or visa office processes your application during the mandamus process. Notably, most applications do not progress past this stage, with only about 20% of immigration-related applications being granted leave. Statistics for mandamus applications are not readily available.

    Hearing and decision if leave is granted

    • Hearing: A judge presides over a hearing during which both parties present legal arguments and evidence. Typically, hearings are scheduled for three hours in most cases.
    • Decision: Reaching a decision can take anywhere from two to six months, with more complex cases potentially requiring more time. The judge provides reasons for the decision and either grants the writ of mandamus or dismisses the case. In most instances, appeals of Federal Court decisions are not permitted. To appeal, a question of general importance in immigration law must be certified, a requirement rarely met. Moreover, legal costs are usually not awarded unless there are compelling reasons justifying such an award.

    Seeking a writ of mandamus in immigration cases can be a complex and lengthy process. Marin Immigration Law is here to provide expert guidance and support throughout this journey, ensuring that your case is effectively presented and advocated for to achieve the best possible outcome. Contact us today to discuss your unique immigration situation and explore your options.

    Legal Representation:

    Obtaining the guidance of an immigration lawyer is paramount when embarking on the intricate journey of a mandamus application. At Marin Immigration Law, Cedric Marin advised judges of the Federal Court of Canada on immigration matters. He has filed successful mandamus applications for both temporary residence and permanent residence. Our expertise allows us to craft compelling demand letters, navigate the legal intricacies, and advocate on your behalf during court proceedings. When you have legal representation, you not only gain a deeper understanding of your case but also ensure that every step of the mandamus application process is strategically executed, maximizing your chances of expediting your immigration status.

    Cost Considerations:

    While pursuing a mandamus application is an investment, it's important to consider the potential long-term benefits it offers. Beyond legal fees and court costs, achieving timely immigration status can lead to stable employment, educational opportunities, and a secure future in Canada. The initial expenses are often outweighed by the advantages of obtaining legal status sooner rather than later.

    Disclaimer: The information provided in this blog is intended for general informational purposes only and it is not legal advice. This blog is not a substitute for professional legal advice, and it may not be appropriate for you. Always do your own research and due diligence before making any decisions related to immigration matters. Do not rely exclusively on this blog. While we strive to provide accurate and up-to-date information, immigration laws and regulations can vary and change over time. It is important to consult with a qualified immigration lawyer if you are unsure how to proceed.

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