Mandamus: Federal Court update
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:
- There must be a public legal duty to act.
- The duty must be owed to the applicant.
- There is a clear right to performance of that duty — it this criterion that involves an assessment of the issue of unreasonable delay.
- Where the duty sought to be enforced is discretionary(which is not the case here) certain additional principles apply.
- 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 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.
