When to make mandamus?
- Thread starter FloydCan
- Start date
I suppose you could but it'd have to be 6 months past your DM date, provided THAT date is outside of 12 months as well. The 12 month is to DM, not oath. They advertise up to 6 months from DM to oath. I think you have to consider the cost as well, but I suppose if money is no object...
This is an older thread regarding mandamus, but it's some good info, specifically the last post answering your question. (in case you haven't seen it yet)
https://www.canadavisa.com/canada-immigration-discussion-board/threads/use-of-mandamus.35955/
https://www.canadavisa.com/canada-immigration-discussion-board/threads/use-of-mandamus.35955/
Thanks sns for the answer and the link. I haven't even been invited for the test. This delay makes me think that my processing will drag on and that's why I'm considering doing the mandamus once 1 year elapses from the time they received my application since they specify 1 year as the normal processing time.
"Normal" means 85%, not all of them, so you may be one of the unfortunate 15%. I'm too lazy to look... what is your timeline?
Do you mean: can you make an application for a Writ of Mandamus?
Do you mean: would an application for a Writ of Mandamus be successful?
Of course you can apply for a Writ of Mandamus any time. No need to wait for a year to have passed.
But to have any chance of succeeding you need grounds. You need to make a demand to the Minister to do what the law requires the Minister to do, and if the Minister thereafter fails to timely take an action the law mandates the Minister take, the Minister's failure to take that action can be the grounds for making an application for the Writ of Mandamus . . . which is legalese for filing a lawsuit against the Minister alleging misconduct by the Minister (failing to do what the law mandates) and asking a Federal Court to Order the Minister to do that action which is mandated by law.
The odds of persuading a Federal Court to grant the Writ depend on the grounds for the Writ. You do not mention any grounds which would support an application for the Writ.
Reminder/clarification: IRCC has NO time limitations for when a citizenship application must be decided, so the passage of time itself does NOT constitute grounds for a Writ of Mandamus.
Do NOT trust posts by anyone purporting to be an expert in this forum. (Obviously, I am NO expert.)
As for mandamus in particular, even relatively few lawyers are experts in mandamus. Those expert in the intersection of citizenship and mandamus are probably, in particular, rather few.
The number of successful mandamus applications regarding citizenship applications has been no more than a tiny trickle for years.
Again, there is NO timeline within which IRCC must process an application.
There are various sources of timeline related information. NONE reliably indicate how long it is likely to take any particular applicant. NONE delineate what is the longest it can take. At best, the information suggests a very broad ballpark range which MIGHT and only MIGHT be the range within which it actually goes.
Basically it can take as long as IRCC takes (and for some the timeline might be plus however long CSIS can take). No time limit.
Note: while highly unusual, there are more than a few citizenship application cases which have involved processing for six, seven, even eight years. There was a period of time, 2011 to 2014 or so, during which scores and scores of applicants, at least hundreds and probably thousands, had citizenship applications pending for three or four years, and among all such cases the Federal Courts issued no more than a few dozen Writs of Mandamus.
There are other more efficient ways to prompt IRCC to take action IF for some reason the application is simply stalled for no reason. This does happen. How often is difficult to discern. Perhaps more often than rare but if so not by much more. In such cases just the webform query or perhaps even a help centre telephone call can prompt IRCC to take action and move the application forward.
It can help to do some homework and approach the webform query or help centre call intelligently, strategically, in a mode to be persuasive which is easier done the better informed and more thoughtful one is, exercising patience and being polite, somewhat persistent but decidedly polite.
Otherwise there are a range of reasons why an application is taking longer than others, longer than most, longer even than many of those which take longer than most. Mandamus is of little use when IRCC has a reason for additional processing time, even if most of the additional time is about the application sitting in a long queue waiting for someone to take action. No mandamus relief is likely to be available for these sorts of delays.
In the past there were more than a few reports of CIC (before the transition to IRCC) essentially putting processing on hold for some applications, an informal sort of suspending of processing. These were the subject of some successful mandamus cases. Of course the Harper government responded by amending the law to incorporate overt authority for suspending processing, but that can only be for certain reasons and can involve some actual limits on the amount of time.
Historical Note: In the past, for example, there were many signs that CIC was deliberately not proceeding ahead with applications if CIC perceived the applicant was living or working abroad while the application was in process. There was no legal authority for CIC to do this. Nor is there legal authority for IRCC to do this now. BUT more than a few have the sense that even now, if IRCC perceives the applicant is living or working abroad, there may be some deliberate stalling. If this is what is happening, an applicant might get things moving by merely initiating the process to pursue a Writ of Mandamus without actually making an application to the Federal Court.
Which leads to some observations about the procedure itself:
As noted, even among lawyers there are few who are experts in making an application for a Writ of Mandamus. The process can be a bit tricky.
While anyone can make an application for the Writ, and have it promptly dismissed or denied, to have any hope of success there are certain prerequisites which need to be met, technical requisites which must be met to actually qualify for a Writ when there are solid grounds for one.
A key prerequisite is the demand made for the Minister to take an action the law clearly compels the Minister to take. Properly making this demand is critical to the chances of success later when an application for the Writ is made to the Federal Court. Doing this is NOT so simple as it may appear. Identifying the precise action which the Minister is compelled by law to do, and has failed to do, and the legal authority for this matter-of-law mandate, demands technical legal expertise.
THIS IS NOT PRO SE TERRITORY. THIS IS QUALIFIED, COMPETENT LAWYER COUNTRY.
If the demand does not state with sufficient clarity and authority what action the Minister is compelled by law to take, and clearly demand that specific action be taken, that alone can cause the later application for a Writ to fail. No matter how strong its underlying merits otherwise are.
This is perhaps best illustrated by the experience scores and scores of applicants had in the period 2011 to 2013 or so, when citizenship processing had bogged down to the point that even routine cases often took more than TWO years, and as mentioned before, scores of non-routine applications were taking three, four, or more years. Forum reports (including in other more active forums at the time) clearly indicated that those who attempted to represent themselves in making the requisite demand, the demand that the Minister take action, tended to see little or no action by CIC, NOT EVEN A RESPONSE TO THE DEMAND. CIC basically ignored these demands, recognizing that for purposes of compelling CIC to take action the demands were so flawed as not warrant a response.
In contrast, for those who had actual grounds and who employed experienced lawyers, many reported that CIC proceeded to take action, to move the case along, no need to actually file an application for the Writ. Indeed, it appeared that if there were actual grounds for a Writ (but remember, the mere length of time is NOT grounds), CIC tended to proceed to a decision in the case. Thus, few of the cases that actually resulted in an application to the Federal Court were successful, apparently because CIC essentially conceded almost all of those cases in which there were good grounds, leaving only those without good grounds to make their futile applications to the courts.
The TAKE-AWAY: if there are grounds supporting the application for a Writ of Mandamus, FIRST a proper demand has to be made of the Minister, and if a competent lawyer makes that proper demand, historically that has very often been enough to get things done. (This does not always mean things go the applicant's way . . . the action CIC/IRCC takes can be to issue RQ, make a referral to a Citizenship Judge, or depending on the reasons perhaps refer the applicant to CBSA or RCMP for further investigation or even deny the application.)
It is worth noting that these days, for the last two plus years, in citizenship cases there have been very, very FEW applications for the Writ of Mandamus resulting in a favourable Federal Court decision. A clue one might say.
Ah, the old "Can I sue X?" question. Of course you can sue and you can also get laughed out of court. On the entire "passage of time alone is not grounds for mandamus" assertion. In some sense this is true in that if the time that has passed is in some way necessary for the minister to complete then task in question, then you are probably out of luck. On the other hand, there must come a point when the amount of time it is taking to process a particular application becomes objectively unreasonable. Obviously, that standard might vary depending on the particular dynamics of the program at the time, but there is at least some precedent that suggests an "application backlog" is itself not an excuse for an unreasonable delay. Is there such a backlog today? Certainly not in comparison to recent history (2011-2016) when even a routine application might take three years or more depending on local office. I would say a processing time of one year and one day is unlikely to result in a successful mandamus action.
Didn't you just send your application in October? Be patient and you'll see movement. Your particular office might be just a bit slower than others at this time, but they will catch up and when they do you'll see movement.
Don't put the cart before the horse.
Don't put the cart before the horse.
lol, agreed but I want to know all the options just in case. As you mentioned, waiting since October so 6 months now and nothing, and while my particular office is slow, there are still people with the same timeline and even later receiving test invites.Didn't you just send your application in October? Be patient and you'll see movement. Your particular office might be just a bit slower than others at this time, but they will catch up and when they do you'll see movement.
Don't put the cart before the horse.
Wrong!
Interestingly, many judges have ruled against this norms, in the past.
Just because there are no specific set timelines for making decision does not warrant immigration files waiting on IRCC's action indefinitely, regardless of whatever reasons IRCC gives.
In fact, IRCC had been cautioned and warned on several occasions by the federal court that applicants are indeed their clients' not CSIS clients, not CBSA clients, or any other agencies in between, causing such delays.
It is the duty of IRCC to give applicants a complete and truthful response one way or another! without unecessary delays, once the average processing timeframe has passed, anything outside of the ordinary, genuine applicants can make a "writ of mandamus", as long as the followings are met :
a) the delay in question was longer than the nature of the process required, prima facie
b) the applicant and his or her legal counsel were not responsible for the delay
c) the authority responsible for the delay did not provide satisfactory justification. (In other words IRCC failed, in its capacity to respond or make determination on time)
Dealing with other agencies responsible for background verifications, or any other issues causing delay is IRCC's issue, not that of their client's.
There are hundreds of cases where IRCC had been compelled to render decisions within a very strict timeline, Instructing the Minister's delegate to adhere by its mandate, in which it had originally failed to exercise, depending on the situation.
One interesting case among numerous cases is that of
Kanthasamyiyar v. Canada (Citizenship and Immigration)
https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/126325/index.do?r=AAAAAQANbWFuZGFtdXMgQ0JTQQE
So I do not totally agree with your comment above.
Getting into the weeds in regards to Mandamus is complicated. In practical terms, however, for purposes of CITIZENSHIP applications, there is little or nothing to be gained by looking to Mandamus EXCEPT in very unusual, distinct circumstances, and even then the assistance of a lawyer is virtually (albeit not technically) NECESSARY.
The mere passage of time does NOT trigger qualifying for Mandamus in regards to CITIZENSHIP application decision-making. An extraordinary long period of time with no action might indicate there is an INVALID reason why IRCC has suspended processing or put the application on hold. This could be, just MIGHT be, a basis for obtaining relief by way of a Writ of Mandamus. To be clear, the basis for obtaining the Writ would be the act of improperly (not lawfully) suspending or putting the application on hold, NOT just the fact that this or that amount of time has passed.
Overall, otherwise, however, there are NO Federal Court decisions which so much as suggest that IRCC (or CIC before it) is required by law to render a decision on a CITIZENSHIP application within any particular period of time. Suggestions to the contrary are wrong. To the extent that arguments to the contrary are predicated on Mandamus cases in other contexts, those arguments are erroneous and the reliance on such cases (as to this particular issue, the mere passage of time) is misleading.
To be clear, as to making a decision on a CITIZENSHIP application: THE PASSAGE OF TIME ITSELF DOES NOT CONSTITUTE GROUNDS FOR A WRIT OF MANDAMUS. Period. There is NO equivocating or waffling about this in cases addressing applications for Mandamus as to CITIZENSHIP application decision-making.
Thus, by the way, this is NOT merely true "in a sense." It is simply, definitively true. True as to CITIZENSHIP application decision-making.
The role the passage of time, in itself, might play in other contexts is a totally separate discussion, including in some other contexts involving citizenship applications, such as the passage of time between when an application has been approved and when the then candidate (applicant becomes a "citizenship candidate" upon approval) is given the opportunity to take the oath. In this respect, if there is a statutory duty to make a decision within a specified time frame (such as a Citizenship Judge's duty to make a decision within a specified time of the referral), the failure to make a decision within the prescribed time MAY (not necessarily will, but might) constitute grounds for issuing Mandamus.
There seems to be some tendency to conflate the mere passage of time with what constitutes an unreasonable delay in taking an action. This generally derives from confusing what constitutes evidence (such as length of time) supporting a particular argument (a particular "delay" is so unreasonable as to constitute a de facto decision which is contrary to law) versus what the particular legal duty is that is central to establishing grounds for the issuance of a Writ of Mandamus.
EVEN IF a case that has NOTHING to do with processing citizenship applications, like the (NOT a citizenship case) Kanthasamyiyar Federal Court decision (2015 FC 1248, see http://canlii.ca/t/glzvm or https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/126325/index.do) is looked to as a source illuminating the general principles involved and how they may be applied in a particular case, an effort to extrapolate the analysis about an "unreasonable delay" in that case and apply it in the citizenship application process is actually more misleading than it is helpful. Note, there are far better sources illuminating the general principles governing Mandamus than the Kanthasamyiyar decision, such as the oft-cited 1994 Apotex Inc. Federal Court of Appeals decision (1 FC 742, 1993 CanLII 3004 (FCA) see: http://canlii.ca/t/4nmr ), noting that Apotex Inc. not only better states the general principles, it is a Federal Court of Appeals decision, and hence is binding precedent, whereas Kanthasamyiyar, a Federal Court decision, is NOT binding precedent.
BUT to put the Kanthasamyiyar decision in perspective, that case addressed a period of time adding up to TEN YEARS, 10 YEARS. The underlying demand for action sent the Minister was made nearly NINE (9) YEARS after the application for Permanent Residence was made (PR app February 2006; demand letter September 2014). While the Federal Court found, in that case, there was in those nearly nine years an "unreasonable delay," it was NOT so unreasonable as to support a grant of costs.
In other words, for those who (erroneously) think that cases like the Kanthasamyiyar decision will promise the remedy of Mandamus based on a mere passage in time, OK, sure, WAIT EIGHT OR NINE YEARS and take your best shot.
Here's a worthwhile clue: while the passage of time itself (again) will NOT constitute a basis for granting Mandamus, the passing of extraordinary long periods of time without apparent reason will often derive from an overt delay in processing, whether that is in the form of suspending processing, a hold on processing, or some other mode in which the processing is stalled, for which there is an explanation, which usually will be a valid explanation but which in some cases is not. An invalid reason to suspend or put processing on hold can be (subject to other factors) GROUNDS FOR MANDAMUS.
The mere fact that a long time has passed is not the issue. What matters is WHY.
If the reason why such a long time has passed is a valid reason, the amount of time will NOT support an application for the Writ of Mandamus.
If the reason why IRCC is not actually proceeding to process a citizenship application is NOT valid, that will support the Writ application and can possibly be enough to succeed, even though way less than NINE YEARS has passed.
The basis for a Writ in the latter circumstance, again, is not how much time has passed, it is the fact that the Minister has in effect acted contrary to law . . . the reason WHY the application is on-hold or suspended is the issue. Not how long it has been in process (recognizing that the longer an improper hold is, the more unreasonable it is, the stronger the case for the court to exercise its DISCRETIONARY power to issue Mandamus).
Leading to this:
SUMMARY: Generally, even in cases involving rather long delays in processing, there is little or no reason for a citizenship applicant to be looking toward Mandamus as a way to compel IRCC to make a decision. There are RARE situations in which pursuing Mandamus is appropriate and can actually help (as noted before, in most such cases just a demand letter FROM A REPUTABLE LAWYER will suffice, no need to actually make a Writ application).
In terms of wondering how long is so long an applicant will want to explore what is happening and why, to determine if perhaps there is a hold or suspension which is not justified, timelines vary so greatly that is difficult if not near impossible to assess in the abstract. But overall the timeline in a non-routine case can slip well beyond a year or two years, and in some periods of time has gone longer than three or even four years, some of the latter reporting some success in getting CIC (as it was at the time) into taking some action through a lawyer-made demand essentially threatening an application for Mandamus.
BUT NO, there is NO two or even three year threshold, let alone merely one-year, which will trigger qualifying for a Writ of Mandamus. That is NOT how it works. Not even close.
The mere passage of time does NOT trigger qualifying for Mandamus in regards to CITIZENSHIP application decision-making. An extraordinary long period of time with no action might indicate there is an INVALID reason why IRCC has suspended processing or put the application on hold. This could be, just MIGHT be, a basis for obtaining relief by way of a Writ of Mandamus. To be clear, the basis for obtaining the Writ would be the act of improperly (not lawfully) suspending or putting the application on hold, NOT just the fact that this or that amount of time has passed.
Overall, otherwise, however, there are NO Federal Court decisions which so much as suggest that IRCC (or CIC before it) is required by law to render a decision on a CITIZENSHIP application within any particular period of time. Suggestions to the contrary are wrong. To the extent that arguments to the contrary are predicated on Mandamus cases in other contexts, those arguments are erroneous and the reliance on such cases (as to this particular issue, the mere passage of time) is misleading.
My statement, the one you quote, which is explicitly about the process to make a CITIZENSHIP application decision, is correct.
To be clear, as to making a decision on a CITIZENSHIP application: THE PASSAGE OF TIME ITSELF DOES NOT CONSTITUTE GROUNDS FOR A WRIT OF MANDAMUS. Period. There is NO equivocating or waffling about this in cases addressing applications for Mandamus as to CITIZENSHIP application decision-making.
Thus, by the way, this is NOT merely true "in a sense." It is simply, definitively true. True as to CITIZENSHIP application decision-making.
The role the passage of time, in itself, might play in other contexts is a totally separate discussion, including in some other contexts involving citizenship applications, such as the passage of time between when an application has been approved and when the then candidate (applicant becomes a "citizenship candidate" upon approval) is given the opportunity to take the oath. In this respect, if there is a statutory duty to make a decision within a specified time frame (such as a Citizenship Judge's duty to make a decision within a specified time of the referral), the failure to make a decision within the prescribed time MAY (not necessarily will, but might) constitute grounds for issuing Mandamus.
There seems to be some tendency to conflate the mere passage of time with what constitutes an unreasonable delay in taking an action. This generally derives from confusing what constitutes evidence (such as length of time) supporting a particular argument (a particular "delay" is so unreasonable as to constitute a de facto decision which is contrary to law) versus what the particular legal duty is that is central to establishing grounds for the issuance of a Writ of Mandamus.
EVEN IF a case that has NOTHING to do with processing citizenship applications, like the (NOT a citizenship case) Kanthasamyiyar Federal Court decision (2015 FC 1248, see http://canlii.ca/t/glzvm or https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/126325/index.do) is looked to as a source illuminating the general principles involved and how they may be applied in a particular case, an effort to extrapolate the analysis about an "unreasonable delay" in that case and apply it in the citizenship application process is actually more misleading than it is helpful. Note, there are far better sources illuminating the general principles governing Mandamus than the Kanthasamyiyar decision, such as the oft-cited 1994 Apotex Inc. Federal Court of Appeals decision (1 FC 742, 1993 CanLII 3004 (FCA) see: http://canlii.ca/t/4nmr ), noting that Apotex Inc. not only better states the general principles, it is a Federal Court of Appeals decision, and hence is binding precedent, whereas Kanthasamyiyar, a Federal Court decision, is NOT binding precedent.
BUT to put the Kanthasamyiyar decision in perspective, that case addressed a period of time adding up to TEN YEARS, 10 YEARS. The underlying demand for action sent the Minister was made nearly NINE (9) YEARS after the application for Permanent Residence was made (PR app February 2006; demand letter September 2014). While the Federal Court found, in that case, there was in those nearly nine years an "unreasonable delay," it was NOT so unreasonable as to support a grant of costs.
In other words, for those who (erroneously) think that cases like the Kanthasamyiyar decision will promise the remedy of Mandamus based on a mere passage in time, OK, sure, WAIT EIGHT OR NINE YEARS and take your best shot.
Here's a worthwhile clue: while the passage of time itself (again) will NOT constitute a basis for granting Mandamus, the passing of extraordinary long periods of time without apparent reason will often derive from an overt delay in processing, whether that is in the form of suspending processing, a hold on processing, or some other mode in which the processing is stalled, for which there is an explanation, which usually will be a valid explanation but which in some cases is not. An invalid reason to suspend or put processing on hold can be (subject to other factors) GROUNDS FOR MANDAMUS.
The mere fact that a long time has passed is not the issue. What matters is WHY.
If the reason why such a long time has passed is a valid reason, the amount of time will NOT support an application for the Writ of Mandamus.
If the reason why IRCC is not actually proceeding to process a citizenship application is NOT valid, that will support the Writ application and can possibly be enough to succeed, even though way less than NINE YEARS has passed.
The basis for a Writ in the latter circumstance, again, is not how much time has passed, it is the fact that the Minister has in effect acted contrary to law . . . the reason WHY the application is on-hold or suspended is the issue. Not how long it has been in process (recognizing that the longer an improper hold is, the more unreasonable it is, the stronger the case for the court to exercise its DISCRETIONARY power to issue Mandamus).
Leading to this:
To the extent this is suggesting there are such cases compelling CIC or IRCC to "render decisions" on Citizenship Applications "within a very strict timeline," it is a blatant misrepresentation. Note, over the course of the last two decades there are no more than a few dozen cases, IN TOTAL, in which a Writ of Mandamus has been issued regarding citizenship applications, NOT a hundred let alone "hundreds," and most of these did NOT address citizenship application decision-making timelines but involved particular actions by the Minister, such as where a decision has been made and the applicant has been approved for the grant of citizenship and the Minister has refused to grant citizenship even though the time within which the Minister can appeal the CJ's approval has passed (see Stanizai 2014 FC 74 http://canlii.ca/t/g2wb9 . . . worth noting, in this case the timeline between application date and decision-made was more than FOUR years, no hint that time period was problematic, it was the failure of the Minister to grant citizenship AFTER the positive decision had already been made that led to Mandamus).
SUMMARY: Generally, even in cases involving rather long delays in processing, there is little or no reason for a citizenship applicant to be looking toward Mandamus as a way to compel IRCC to make a decision. There are RARE situations in which pursuing Mandamus is appropriate and can actually help (as noted before, in most such cases just a demand letter FROM A REPUTABLE LAWYER will suffice, no need to actually make a Writ application).
In terms of wondering how long is so long an applicant will want to explore what is happening and why, to determine if perhaps there is a hold or suspension which is not justified, timelines vary so greatly that is difficult if not near impossible to assess in the abstract. But overall the timeline in a non-routine case can slip well beyond a year or two years, and in some periods of time has gone longer than three or even four years, some of the latter reporting some success in getting CIC (as it was at the time) into taking some action through a lawyer-made demand essentially threatening an application for Mandamus.
BUT NO, there is NO two or even three year threshold, let alone merely one-year, which will trigger qualifying for a Writ of Mandamus. That is NOT how it works. Not even close.