Unreasonable delays in immigration applications can cause significant frustration and hardship. When all other efforts have failed to prompt action, a Mandamus application at the Federal Court of Canada can compel the government to move forward with your immigration file.
Steps to Take Before Filing a Mandamus Application
Consider these alternatives to save time and costs before pursuing Mandamus:
Check IRCC Processing Times: Ensure your delay significantly exceeds IRCC’s posted processing times, as only substantial delays are likely to succeed with Mandamus.
Contact the Client Support Centre: Follow up on your application status directly through IRCC’s Client Support Centre.
IRCC Webform Messages: Request an update through the IRCC Webform; use sparingly and professionally to avoid annoying the officer handling your file.
Request GCMS Notes: Submit an ATIP request to obtain the officer’s notes on your file (GCMS Notes). These can reveal underlying issues causing delays, allowing you or your representative to address them and potentially resolve the problem causing delays.
Contact Your Member of Parliament: MPs can offer immigration support, but with over 70% of their workload already focused on immigration, help is usually limited.
What is Mandamus?
Mandamus is a legal remedy designed to compel government officials to fulfill a duty they are legally obligated to perform. In immigration law, it addresses unreasonable delays in processing immigration applications. Mandamus ensures accountability in government processes and protects individuals from unreasonable delays that disrupt their lives.
To evaluate whether a delay is unreasonable, courts apply the Conille factors:
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The length of the delay
While there is no fixed benchmark, cases exceeding standard processing times by 200%-300% often have a strong chance of success.
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The reason for the delay
The court assesses whether IRCC’s explanation for the delay is reasonable.
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The applicant’s conduct
Applicants must submit all required documents and respond promptly to all requests from IRCC.
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The impact of the delay
This includes assessing harm caused by the delay, such as economic hardship, family separation, or other significant consequences.
The key parties in a Mandamus application are the Applicant, represented by their lawyer, and the Minister of Citizenship and Immigration, represented by a Department of Justice (DOJ) lawyer.
The Mandamus Process
1. Notice of Intention to File Mandamus: Before filing, we serve notices to IRCC at intervals of 60, 45, 30, and 15 days, urging action on your file. If there is no progress—such as a final decision, request for documents, or Procedural Fairness Letter—we proceed to the next step.
2. Filing the Application for Leave and Judicial Review: We initiate the process by filing an Application for Leave and Judicial Review with the Federal Court Registry.
3. Rule 9 Decision Notes: Once the application is filled, we request Rule 9 Decision Notes, which contain case notes from your pending immigration file.
4. Application and Respondent Records: After receiving the Rule 9 Decision Notes, we prepare the Application Record, which includes your immigration file history, all the materials from the immigration application, and legal arguments. The DOJ then files its Respondent Record to defend the government’s position.
5. Leave Decision: In this step, the Federal Court Justice reviews the Application Record and Respondent Record to decide whether Leave should be granted. Leave serves as a filter, ensuring only cases with a strong legal foundation proceed to a full Judicial Review hearing. If Leave is granted, a hearing is typically scheduled within 90 days.
6. Oral Hearing: During the hearing, both sides present their arguments, and the possible outcomes include:
Allowed: A writ of Mandamus is issued by the court to compel the Minister to process the application within a set deadline.
Dismissed: The application remains delayed indefinitely, with no court-mandated deadline for a decision.
How Jakabek Immigration Law Can Help
Strategic Early Settlement to Minimize Costs:
Simply engaging a lawyer and sending Mandamus notices (at 60, 45, 30, and 15 days) often prompts the government to act, resolving the delay without the need for court proceedings. This saves you time and reduces legal fees. Moreover, after receiving the Rule 9 Decision Notes, we negotiate with the DOJ to reach a settlement. While early settlements are increasingly less common due to rising case volumes, we still find that filing the Application Record demonstrates our commitment and often prompts settlement.
Transparent Block Fee Model:
Our block fee model provides fixed charges for each stage:
Block A: Step 1
Block B: Steps 2-3
Block C: Steps 4-5
Block D: Step 6
This model ensures you know the exact costs upfront and helps you save money if an early settlement is reached.
Comprehensive Legal Support and Advocacy:
With our Federal Court experience, we handle all aspects of your Mandamus application, from analyzing your case history to crafting strong legal arguments and advocating during oral hearings.
