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Mandamus Application to Fast-Track Immigration Applications

mandamus application

Canada is known for its welcoming attitude towards immigrants, and many individuals seek to relocate here for a better quality of life, employment, and other opportunities. However, the process for applying for permanent residency, work permits, study permits and visitor visas can be a lengthy and frustrating one, with many applicants experiencing significant delays.

One of the primary reasons for delays in processing times is the sheer volume of applications that the Canadian immigration system receives. In recent years, immigration to Canada has become increasingly popular, with thousands of individuals applying for permanent residency, work permits, study permits, and visitor visas each year. This influx of applications has put a significant strain on the immigration system, resulting in longer processing times and backlogs that can take months or even years to resolve.

Another factor that contributes to delays in processing times is the complexity of the application process itself. There are many different types of applications that can be submitted, each with its own set of requirements, forms, and supporting documents. That can make the application process confusing and time-consuming, particularly for individuals who are not familiar with the Canadian immigration system.

Another common problem that can contribute to delays is the requirement for security and background checks. In order to ensure the safety and security of Canadians, all applicants for permanent residency must undergo a thorough security and background check. This can take a significant amount of time, particularly if an applicant has a complicated or difficult-to-verify background. Finally, financial constraints can also be a reason for delays. Processing permanent residency applications and visas requires a significant investment of time and resources for the Canadian government.

However, funding for the immigration system is often limited, which can lead to staffing shortages, incomplete or inaccurate information being processed, and delayed processing times. For individuals who are navigating the Canadian immigration system, these delays can be frustrating and stressful. Applicants for permanent residency, work permits, or study permits may need to postpone their relocation, employment, or education plans, and may experience a range of difficulties during their wait. For some, the delays can even cause significant financial hardship. That is why it is important to utilize all options available to you to decrease delays and speed up your application.

Occasionally, it can help to simply have your legal representative write a letter for you explaining how the delay is impacting you. In most situations, it may be necessary or appropriate to take more legal measures such as mandamus application.

Mandamus Application to Fast-track Immigration Applications

If you feel that your immigration application is taking longer than it should and you have exhausted all other options, you may consider filing a mandamus application (also known as a writ of mandamus). A mandamus application is a legal remedy that can be used to compel the government to process your application within a reasonable time frame.

In other words, it is a court action that requests that the government be forced by a court to take action. To begin, you will need to consult with an immigration lawyer or an agent to help you decide if a mandamus application is the right solution for your case. Once you’ve decided to move forward, your lawyer will first send a notice to the relevant office of Immigration Refugees Citizenship Canada (“IRC”) and ask them to make a decision within the prescribed period of time. If the IRCC office fails to do so, you will file an application with the Federal Court of Canada.

The application will outline the details of your case and why you think your application should be processed in a timely manner. This includes a copy of correspondence between yourself and IRCC: If the court does grant the order, the government must comply with the order and take action to process your application within a reasonable time frame. The Federal Court may also order the government to finalize your immigration application within a certain period of time. The Federal Court may also order to pay for any costs associated with the mandamus application, including legal fees if there are special considerations.

In a mandamus application, the Applicant must show that they meet certain legal criteria, including showing unreasonable delay, for their immigration applications to be finalized within the prescribed period of time (Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (F.C.A.))

In Conille, the Federal Court set out three criteria to be met for the delay to be considered unreasonable: (1) the delay in question has been longer than the nature of the process required, prima facie; (2) the applicant and his counsel are not responsible for the delay; and (3) the authority responsible for the delay has not provided satisfactory justification (Conille v. Canada (M.C.I.), 1998 CanLII  9097, [1999] 2 F.C. 33).

The Federal Court has refused to accept departmental backlogs, or staff shortages as reasonable explanations, nor does the Federal Court tend to look to the system as a whole. Rather, each case is assessed on its own facts. As stated in Hanano:

There is no basis upon which to find that the delay is systemic. There is no evidence except for the chronology of events and the visa officer’s statement that the work was “ongoing”. I agree that the application was in motion, but it was not going anywhere. There was no progress being made and Mr. Hanano was caught in a cycle. Therefore, quite simply, is no evidence before me that provides justification for the excessive delay in rendering a decision in relation to this application.

Hanano v. Canada (Minister of Citizenship and Immigration), 2004 FC 998 at para. 28

So, if you are experiencing an unreasonable delay in your application, there are options for you to try to speed it up and we are there to help you.

Class Mandamus

Our office successfully handled a recent class mandamus case with IMM-1766-23. The Ankara overseas office of the IRCC has significantly delayed several temporary resident applications including study permit applications and visitor visa applications. On January 16, 2023, our office sent a notice to the Ankara office asking them to make a decision on the five outstanding applications by February 1st, 2023.

The Ankara office failed to comply with the notice within the prescribed period of time. On February 7, 2023, our office has initiated a proposed class proceeding with the Federal Court. On February 16, 2023, the Chief Justice Paul S. Crampton certified the application as a certified class proceeding and Justice Martine St-Louis and Associate Judge Trent Horne are assigned as Case Management Judges in the matter. Justice St-Louis and Associate Judge Horne have scheduled a case management teleconference for Wednesday, March 8, 2023.

 On March 1, 2023, three of the Applications received passport request letters from the Ankara office while the other two applications received correspondence requesting additional documents or information required for finalization. Eventually, all five applications have been successfully determined within a short period of time after filing the mandamus application.

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