This boring-sounding Latin word can be a last-resort tool to finally get a decision on your immigration application
By: Jessye Kilburn, Canadian Immigration and Refugee Lawyer & Former Federal Court Clerk
Mandamus is a hot topic in this era of historically long immigration delays. It’s also a big Latin word that many lawyers have a hard time explaining without using convoluted “legalese”.
“Legalese” (the formal language of the legal profession) has its uses – for example, in court documents. But sometimes lawyers love it a little too much. (Alas, there are even t-shirts.)
So I’m here on the blog today to try to explain mandamus without too much lawyer talk. Wish me luck.
Image from: https://thesaurus.plus/synonyms/mandamus
Let’s say you applied for permanent residence 3 years ago, and you’ve been asking IRCC for updates ever since, to no avail. You’ve done access to information requests, and you’ve asked a local Member of Parliament to inquire about your case, but you have no idea why IRCC has been delaying so long. Maybe you know people who applied after you and have already been approved. What else can you do?
If IRCC is taking an unreasonably long time to decide your immigration case, you can ask the Federal Court to order IRCC to make a decision. This is called applying for “mandamus”.
Mandamus means “we command” in Latin. Essentially, when you request mandamus, you are asking the court to “command” the decision-maker to hurry up and make their decision.
The Federal Court judge likely won’t decide the case for IRCC and will very rarely grant or refuse your immigration application (for a very exceptional circumstance see: https://canlii.ca/t/g6hpg) . But the judge can tell IRCC that it has been too long and that IRCC needs to make a decision one way or the other.
Applying for mandamus is a last-resort option – it’s not something you can do to get faster processing from the outset or to “leapfrog” ahead of other applicants. But sometimes, unreasonably long delays can leave you no choice but to ask the court to step in.
(Side note: While I am using the example of a permanent residence application as an illustration, mandamus can be used with other kinds of immigration or refugee applications, including study permits, work permits, citizenship applications, or cases at the Immigration and Refugee Board. The length of time considered an “unreasonable delay” will vary depending on the kind of case.)
What’s the procedure?
When Heron Law Offices works with clients on mandamus applications, we start out by sending a letter to IRCC letting them know that we intend to apply for mandamus and giving them one last chance to respond or make a decision. This is called a “demand letter”, and the goal of it is to either convince IRCC to speed up, or to use it in court down the road to show the judge that we have done everything we could to request a decision.
If IRCC does nothing, the next step is the Federal Court process, which has several stages (similar to a typical judicial review application):
- First, we submit an “Application for Leave and Judicial Review” to the court. At this point, we make our basic arguments, but we don’t have to file our evidence yet.
- The government then has to respond to let the Court know whether they have made a decision. This is called the “Rule 9 Reasons”.
- After we get the Rule 9 Reasons, we have 30 days to file our arguments and evidence (subject to mode of delivery of the Rule 9 Reasons)
- The government lawyers have 30 days to respond to us.
- Then, we have 10 days to reply to the government’s arguments. (** Sometimes, at this point (or even before), the government and their lawyers will decide to “consent”, which means they don’t want to fight the case and they will agree to make a decision within a reasonable time. If they don’t consent, then the court process continues)
- Next, the case goes to a judge, who decides whether it’s strong enough to schedule a hearing where the lawyers make arguments to the judge over video or in person. This is called “granting leave”.
- If the judge doesn’t grant leave, then we’ve lost the mandamus case and we have to wait for IRCC to make its decision on its own schedule. This doesn’t mean that your permanent residence application is denied, it just means you have to keep waiting.
- If the judge does grant leave, then each side gets a chance to make further written arguments. Then, the hearing happens in front of another judge, who will make the final decision on whether to grant your request for mandamus.
What will the judge look at?
The big question is: how does the judge actually decide whether to grant mandamus? The judge has to look to past cases, which over the years have created and clarified the legal “test”.
The legal test contains quite a few different elements that we have to show before a judge will grant the request for mandamus. We have to show:
- that IRCC has a duty to decide your application
- that you have done everything required of you
- that you’ve made a previous demand to IRCC and given them time to respond (this is the “demand letter” mentioned above)
- that the delay is unreasonable (which means that the delay is longer than the process should require, that you are not responsible for the delay, and that IRCC has not provided a satisfactory justification for the delay)
- that there is no other adequate solution for you
- that granting mandamus will have a practical value or effect
- that there’s no reason to bar you from mandamus
- that the balance of convenience favours you rather than IRCC
What’s the result?
If the judge finds that all these parts of the test are fulfilled, they will grant mandamus. They might also tell IRCC that they have a certain amount of time (e.g. 90 days) to make a decision.
If the judge rejects your mandamus application, this means that you have to keep waiting for IRCC to decide in its own time. It doesn’t mean that your application for permanent residence is rejected.
In most cases, the judge doesn’t tell IRCC whether they should approve or deny your application – that is for IRCC to do based on its usual criteria.
The hope is that IRCC will make a positive decision at this stage. But even if the decision is negative, it can help just to have an answer – it allows you to consider whether you want to reapply, challenge the decision in court, or change course. If you are applying for a study permit, a negative decision might allow you to get a tuition refund from your school.
The future of delay in immigration applications
We all hope that processing times will return to normal soon, as IRCC hires more decision makers to expand its capacity. However, quicker processing times for some may not be the reality for all.
As our office’s founding lawyer Will Tao has written about extensively, IRCC is moving to greater use of artificial intelligence tools that prioritize some applications in a “green bin”, while requiring others to undergo human review. Looking forward, it will be important to watch what happens to the applications that are not prioritized for automated review. Will there be an incentive to process complex cases requiring human review, or will systems instead focus on approving those who are deemed “low risk” by automated triage systems? For many, delay may effectively feel like a refusal, as plans are put on hold and uncertainty stretches out from months into years. As years go by, initial ambitions to come to Canada may even dissipate or be complicated by factors emerging from the delay.
Mandamus is one tool that we can turn to when processing times are dealt out inequitably, to find a way forward for those who are facing unreasonable delay. Feel free to contact me at jessye@heronlaw.ca with any feedback or questions you may have.
