“HEY IRCC – STOP STALLING!” MANDAMUS APPLICATION TO GET THE RESULTS YOU NEED

The last several years have been trying times in the immigration field. Because of the COVID-19 pandemic and other processing delays, Immigration, Refugees and Citizenship Canada (IRCC) has a ridiculous backlog of files. There are purportedly now more than 2 million (!) applications pending. This may include yours. With such a backlog, it is no surprise that many applications have been lost in the shuffle, hidden under piles of other applications on officers’ desks, or just stuck in the backlog.

However, just because there is a backlog does not mean that you have to wait indefinitely for your  application to be processed. The IRCC has an obligation to review and process your application in a timely manner, and you have the right to prompt them to push you matter forward. It is not fair for you to be left waiting, and to put your life on hold indefinitely until someone gets around to reading what you submitted. You no doubt want to begin your new job in Canada, or be reunited with a loved one who you have not seen for some time. You may also just be waiting to visit  Canada, but a long delay may  mean the difference between a visit in the beautiful summer as opposed to a visit in the cold winter.

What is mandamus application?

If you have an application pending for a long time, then you can try to force IRCC to complete the processing. To do so, you must apply to the Federal Court for a writ of mandamus.

What is a long time? Well the IRCC publishes the approximate processing times on their website for various applications. If it is months or years past the average processing time for your application, then this is an option you may want to consider.

A writ of mandamus is an extraordinary remedy wherein a judge of the Federal Court can order the IRCC to complete the processing of your application. It does not mean the court will order IRCC to approve your application, but it will force IRCC to make a final determination, so that approved or refused, you at least have some way of moving forward and no longer be stuck in limbo. If it is approved, great, and if it is refused, you can pursue your options to challenge the refusal. At least you will have a decision though.

This is an excellent way to get past the generic responses you may received from your IRCC Webform inquiries, or the minimal amount of additional information you may receive from the IRCC helpline or your MP’s office.

Over the last several years, I have assisted countless people in bringing applications for mandamus. These types of applications include:

• Express entry applications for permanent residency
• Spousal and parental sponsorship applications
• Citizenship applications
• Live-in caregiver and other types of caregiver applications

How it works

Everyone approaches mandamus applications differently. My approach is designed however to be done in stages, to ensure that we are not wasting time and that my clients are not wasting their money.

I begin by preparing a demand letter to send to IRCC. This letter sets out various details about the application, and demands that the application be processed in 30 days. The demand letter is accompanied by a draft application for mandamus that I have prepared, to show that we  are serious about litigating.

If, after the 30 days, we do not hear back from IRCC, then we will file the application for mandamus at the Federal Court which begins the process. After filing, and obtaining a Federal Court file number, there are several different steps that can be taken, which can include engaging with the Department of Justice, or perfecting an application record with fulsome legal arguments, for submission to the court.

Example – Overseas Spousal Sponsorship Application

I was recently retained by a woman who sponsored her husband for permanent residency from overseas. He lives in Iran, and they submitted their sponsorship application over four years prior. The processing time for this application was only supposed to be 12 months, but it had been almost 48. Even with the delays caused by the COVID-19 pandemic, this was still an egregious delay. There were no complicating factors such as criminality, inadmissibility, or medical concerns, and it appeared that the application was just stuck because of third-party background checks which should have been straightforward.

My client was upset because the years spent waiting for her husband to join her set their family planning back several years. They had wanted to start having children, and she was worried that she could no longer do so because of her age. This was a very real consequence of a delay in immigration processing.

As such, we considered her options and we decided to begin the mandamus process. We  submitted a demand letter and draft application for mandamus. When we did not receive a  response within the requested 30 days, we filed the application for mandamus at the Federal Court. I was then able to speak with counsel at the Department of Justice (DOJ), who spoke with their client (IRCC) who began to move the process forward. Suddenly, we received a request for additional materials, and it appeared that the overseas Embassy had fished the file out from underneath a pile of other applications, and had once again turned their minds to the file. We complied with their next request for information, and they promptly completed the processing of the application, asking my client’s husband to soon submit his passport to receive his visa to travel to Canada. Today, I am happy to state that my client’s application has been approved and they are together in Canada.

Example – Live-in Caregiver Application

In another example, I was contacted by an employer in Canada who had applied for a live-in caregiver to come to Canada in early 2020 from the Philippines. Together with an agency, they had submitted a fulsome application with all the supporting information and documentation. However, because of the COVID-19 processing delays and a freeze on processing caregiver applications, this application also seemed to be stuck. After making several inquiries, it was determined that this application was just not moving forward because it was not moving forward. No good reason was given.

As such, we also filed a demand letter with a draft mandamus application. After 30 days, we filed the application with the Federal Court.

In this case, the DOJ lawyer was unwilling to engage in negotiations with us, because of her belief that the processing time was reasonable (it is unclear how it is reasonable to take 2.5 years to process a caregiver application, when the whole purpose of the application is to find someone to care for children who are young). As such, we were required to perfect our application at the Federal Court and submit our legal arguments (factum) as to why we believed the mandamus order sought was appropriate. Shortly after preparing and submitting our legal arguments, the IRCC requested my client’s passport so that they could finish processing the application. She’s almost here.

Example – Citizenship Application

I was retained by an individual who had applied for Canadian citizenship 33 months earlier. The published processing times for citizenship applications was 23 months, and this 10 month delay seemed unreasonable. He had written to IRCC asking for updates, had gone to his MP, and had sought as much help as he could reasonably have received, but got no substantive response. We thus wrote to IRCC and demanded prompt processing. We received no response, and commenced our mandamus application.

After beginning the application, I reached out to the DOJ. I finally received a substantive update: my client’s application had been flagged on account of an ongoing CBSA investigation. As such, they were entitled to delay, and we would not have succeeded on a mandamus application. I advised my client, and though he was upset about the delay, and concerned about the investigation, he finally received some more information so that his application was not just out there, waiting to land on him at some point in the future.

Give it a try

A mandamus application is, in my opinion, a successful and important tool that can go a long way in pushing your application to the top of a pile. Often, there is no reason that an application has been left pending for so long, and the officer responsible for it just needs to be pushed to pay extra attention. As well, in recent months, it was discovered that many applications had been assigned to immigration officers who no longer work at IRCC, and so nothing was being done – they were just sitting in an unchecked email account or empty desk. When a mandamus application is filed, someone starts to pay attention to the application, and things can move quickly. 

There is, in my opinion, no downside to at least commencing a mandamus application. It is a relatively inexpensive process, and it enables your lawyer to effectively advocate for your rights and entitlements pursuant to the Immigration and Refugee Act (“IRPA”), to make sure that you get what you deserve.

If you have been waiting a long time for an application that you have submitted to be processed, a mandamus application may be the right move for you. Each case is unique however, and it is important that you get proper advice from an immigration lawyer to be sure that you fully understand your rights. Experienced counsel can assist in getting you what you deserve.

Should you have any questions at all, it would be my pleasure to help.

(Mandamus is a Latin word meaning “we command”, as in the Federal Court commanding IRCC to do something.)