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Mandamus: Federal Court update

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Waiting for IRCC Officers to make decisions is frustrating for all our clients. Over the years, IRCC has made many efforts to communicate with applicants to publish average processing times and to updated information on the website. These have been positive changes and we applaud IRCC for these improvements. However, the current level of frustration is high. Some applications still take much longer than average processing times and, for those clients, they have limited solutions to get a final decision.

We have published many articles on how to speed up the application process. We have various types of remedies for clients who are frustrated with processing by the IRCC Officer. We have published the legal test for a writ of mandamus to Federal Court to make sure our clients understand the process.

Information is incredibly powerful to making the best decision. At CIL, we work to ensure our clients understand every step and they can see all the work we are doing on their behalf. We believe we have the best communication and our clients are never wondering what needs to be done.

Many immigration professionals, including agents and consultants, do not community well with their clients. They do not return calls. They do not explain all the procedures. Clients are frustrated with IRCC and then they can feel more frustration with their agents. If you are in this situation, you can sue your agent or immigration consultant.

Update from Federal Court: Mandamus

Congratulations to my former Queen’s Law professor and mentor Barbara Jackman for this recent Federal Court decision. In Saravanabavanathan v. Canada (Citizenship and Immigration) 2024 FC 564, Justice Grant explained:

[15] Mandamus is a discretionary, equitable remedy. The parties agree on the legal test for mandamus, as set out in Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 F.C. 742 (C.A.), at pages 766–769, aff’d [1994] 3 S.C.R. 1100 [Apotex]. To obtain an order of mandamus, the Applicant bears the onus of satisfying the following conditions:

  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 performance of that duty — it this criterion that involves an assessment of the issue of unreasonable delay.
  4. Where the duty sought to be enforced is discretionary(which is not the case here) certain additional principles apply.
  5. No other adequate remedy is available to the applicant.
  6. The order sought will be of some practical value or effect.
  7. There is no equitable bar to the relief sought.
  8. On a “balance of convenience” an order in the nature of mandamus should (or should not) issue.

[16] This test has been applied in the immigration context on many occasions: see for example Conille v Canada (Minister of Citizenship and Immigration), 1998 CanLII 9097 (FC), [1999] 2 F.C. 33 (T.D.) [Conille]; Almuhtadi; Bidgoly v Canada (Citizenship and Immigration), 2022 FC 283 [Bidgoly].

[…]

28] It is clear that the first two factors for determining a right to performance have been met: the Applicants have fulfilled all of the conditions for a decision to be made and they have requested (multiple times, in fact) that a decision be made. The only question, then, is whether the delay is reasonable, per the factors set out in Conille.

This leads to the key part of this decision. The Court must consider the particular circumstances of the applicant to determine whether the delay is “reasonable”.

[37] In this case, the Applicants’ application was submitted over a year before the pandemic began, and it has now been many months, if not years, since most government agencies resumed to a fully operational state. As the Respondent acknowledges, the global pandemic cannot explain the entirety of the delay.

[38] Taking into account the above, together with the preponderance of recent, applicable jurisprudence, I find that the Applicants have established a prima facie situation of unreasonable delay, one that they are not responsible for, and that the Respondents have been unable to adequately justify.

For the reasons above, the applicants won this ALJR. Congratulations to Barb and her team. Congratulations to the applicants. Hopefully they will be reunited in Canada soon.

 

 

Delays, Excuses and Backlogs

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IRCC processing times, which are published and updated online here, can be very frustrating for applicants and representatives. As I testified to the Parliamentary committee in NOV 2020, I have been urging the Canadian government to further digitize the system to improve efficiency and to shorten processing times. Government departments, alas, are very slow to adapt. After a year, we have seen some minor improvements to the system and we acknowledge that many IRCC Officers have been focused on helping applicants from Afghanistan and other countries who require urgent attention. That said, it is very frustrating that we are constantly dealing with IRCC delays, excuses and backlogs. As often reported in the news, IRCC delays may cause serious problems for the applicants. 

How to Avoid Delaysdelays, excuses and backlogs

We often get clients who come to us when they are frustrated and they have exhausted all logical routes to expedite their applications. During consultations, clients almost always want to know how long an application will take and they want to know what they can do to speed it up.

Our first piece of advice: make sure the application is complete and it is done properly.

To do that, we recommend that you hire a representative. Collectively, the staff at CIL has more than 40 years of experience putting applications together and dealing with every type of situation. We understand the purpose and language of the IRCC forms, which may not be clear. Too often, we have seen applicants go sideways because an applicant did not answer the forms correctly. I will add that many applicants have good intentions and they make mistakes even when they are trying their best to follow the IRCC guide.

The second piece of advice: IRCC Officers are people too.

It is very easy to think of IRCC as a monolithic department of cogs and wheels. That is simply not the case. IRCC is one of the largest departments within the federal government, with many different offices. Each Case Processing Centre has its own office culture. Each Visa Office has its own idiosyncrasies. And each Officer is empowered with discretionary power to handle their applications as they see fit, within reason. I have seen messages to Officers that are rude, unprofessional and insulting. Do you think this helped? No, of course not. It is more likely the application of a belligerent applicant will receive additional scrutiny. Be respectful. Be professional. Despite IRCC delays, the Officer who may be working diligently on the other end will appreciate it.

Third piece of advice: work within the system.

I am hesitant with this advice. The Canadian immigration system is arbitrary and often unfair. At times, it seems like the best course of action is to try to break the system and, at times, it seems like the system is not working. That said, we advise to try to work within the system as much as possible. The system itself is vast and complex. Sometimes a client will complain and express their frustration/ disappointment before they have exhausted all options within the system.

When All Else Fails – Mandamus

In cases where an application has been in process for much longer than average processing times and all (reasonable) efforts have failed, we file Mandumas Applications to Federal Court. This is considered to be an “extraordinary” remedy and it should be employed as a last resort (read: last, last, last resort) when the IRCC delays are unbearable. Mandamus applications are expensive and they do not guarantee a positive result. If allowed, the Court will simply make an Order to IRCC to make a decision – positive or negative.

In a recent 2020 decision, Justice St Louis outlined the relevant legal test:

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:

  1. a) the applicant has satisfied all conditions precedent giving rise to the duty;
  2. b) there was:

(i) a prior demand for performance of the duty;

(ii) a reasonable time to comply with the demand unless refused outright; and

(iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.

4) where the duty is discretionary, the discretion is fettered and spent.

5) No other adequate remedy is available to the applicant.

6) The order sought will be of some practical value or effect.

7) There is no equitable bar to the relief sought.

8) On a “balance of convenience”, an order in the nature of mandamus should issue.

As with all matters before Federal Court, the job of the lawyers at the Department of Justice (DOJ) is to act in the best interests of the Government of Canada. Most of the time, this means the DOJ lawyer will defend the Officer, even to the point of defending IRCC delays.

In the case cited above, the Mandamus Application was dismissed. This means that all the time and effort on the part of the lawyer was wasted. It also means that all the $$$$ spent by the client was for naught.

The last point regarding Mandamus Applications is that the IRCC application may be decided at any time. There is no way to predict exactly when the IRCC Officer will make a decision.

Every Case is Different

It may be trite but it is important to underline that every case, every application is different. In the background, the IRCC Officer may be doing an investigation, completely unbeknownst by the applicant.

I cannot tell you how many times we have heard something along these lines: “my friend has exactly the same case and his application was approved a long time ago! Can you help?”

If we are then retained to help, we can then try to figure out what is going on. It is often very clear after our review that the application had issues and, in fact, it was very unlikely the friend’s case was “exactly the same”.

Things May be Improving

I think it is very clear the Canadian immigration system is slow. There are many things that can be done to increase efficiencies and I know IRCC is working hard to improve the system.

We did a Canadian citizenship application for 2 minor applicants (which were approved). Average processing times for the application are 12 months and we got approvals after only 6 months. So our client was very happy with our service. However, she then applied for UK citizenship for the 2 minor applicants (their father is British) and the applications were processed in a few weeks. She was able to scan and send the documents to the UK Officer by email. Imagine that!

To end, we want to congratulate the new Minister of IRCC, the Honorable Sean Fraser. Hopefully, he will continue to build efficiencies in the system to make it better and easier to reunite families in Canada.