Hi.
@legalfalcon. I submitted my PR application under CEC in October 2019. I am an inland applicant, single, with no children. Until today they are still putting my file on hold. According to my GCMS notes, the very last update was made by IRCC on Oct 21, 2020, which says my file was "approved". I can even see my COPR number generated on Oct 21, 2020. After that day nothing has been done, and I have been waiting for the COPR letter for 5 months. I do not believe that IRCC can use COVID as an excuse on my application because the covid lockdown happened after 5 months of my AOR date. I have got enough evidence from both my GCMS notes and my webform emails that IRCC was not communicating with me clearly and doing their job properly during the whole process. I also believe that IRCC has violated the law of natural justice and procedural fairness in my case. Would you suggest me to file a mandamus appeal to Federal Court? Should I appeal to Standing Committee on Citizenship and Immigration first before filing this mandamus lawsuit? What would you suggest?
Thank you.
First of all Mandamus is not a right, it is a discretion of the Court based on many factors. First of all you need to understand what Mandamus is and why it is filed. If there has been an inordinate delay only then a writ of mandamus can be filed before the Federal Court asking the court to compel the Minister of Immigration to make a decision on your file. However, each case is different and based on individual circumstances which would determine if the case would succeed or not.
The legal test to be applied when determining whether to grant an order for mandamus is set out in
Kalachnikov v. Canada (Minister of Citizenship and Immigration),2003 FCT 777, citing
Apotex Inc. v Canada (Attorney General),
1993 CanLII 3004 (FCA), [1994] 1 FC 742 (CA), affirmed by the Supreme Court of Canada in [1994] 3 SCR 1110:
1. There is a public duty to the applicant to act;
2. The duty must be owed to the applicant;
3. There is a clear right to the performance of that duty, in particular:
(a) the applicant has satisfied all conditions precedent giving rise to the duty;
(b) there was a prior demand for performance of the duty, a reasonable time to comply with the demand, and a subsequent refusal which can be either expressed or implied;
4. There is no other adequate remedy. [See Note 5 below]
5. The “balance of convenience” favours the applicant (
Apotex Inc. v. Canada (A.G.),
1993 CanLII 3004 (FCA), [1994] 1 F.C. 742 (C.A.), aff'd
1994 CanLII 47 (SCC), [1994] 3 S.C.R. 1100,
Conille v. Canada (Minister of Citizenship and Immigration), [1992] 2 F.C. 33 (T.D.)).[/QUOTE]
In
Conille, supra,
1998 CanLII 9097 (FC), [1999] 2 F.C. 33 (T.D.) , Tremblay-Lamer J. set out three requirements at paragraph 23, that must be met if a delay is 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.
If you test your case against all of the above criteria, and given that your AoR is October 2019, you will not be able to meet the balance of convenience test since the average processing time for an application pre-COVID was 5-8 months. Also, the fact that you are CEC inland, you have the right to stay in Canada, apply for BOWP and any time you spend in Canada will be later counted towards your citizenship (50%). Also, factors such as staffing issues with IRCC, and COVID will play a big role and courts will be reluctant to interfere.
To answer your questions:
1. As per the analysis above, Mandamus does not mandate a specific time frame, but the test is subjective and will depend on a case by case basis.
2. The process will depend on whether you case goes to trial before judge, or is dealt with by your lawyer and IRCC's lawyer and settled. Most cases end up being settled, but at this juncture IRCC will not be inclined to settle, as if they do, it will open room for more similar cases. To take a leave of the Court and going though the process will take 6-8 months, and will cost you at least 5-7K if it settles, and 10-12K it it goes to the court for arguments.
3. There are many applicants who have filed Mandamus and got positive results, but that was in the context of delay in their security screening.
You can read more on mandamus cases:
https://canlii.ca/t/j1vrp
https://canlii.ca/t/jbk59
Also, you can consult an immigration lawyer. Immigration Consultants cannot represent you before the federal court, only lawyers can.
Hope this helps!
