Hi
@legalfalcon and all
Can we file a petition for the application that r stuck since November 2019 or before. As we see so many people are getting COPR who applied in mid 2020 or even later. So many like me, waiting for around 1.5 year and no movements on file.
If you are referring to filing a writ of mandamus before the federal court seeking a direction from the court to instruct the Minister of Immigration to finalise your application, then it won't work.
Reposing my old post on this issue:
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 also factor staffing issues with IRCC and COVID, a court will be reluctant to interfere. However, IRCC is sending out COPR and has placed application on hold for administrative convenience, since if an application is finalised, and if the COPR / PR visa expires then IRCC has to re-open at the file and process it again for any expires checks and then issue a new COPR. Once the travel restrictions are eased, you will bee the COPR being sent in mass batches.
To summarise:
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. It can be anywhere from 3-8 months.
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
Hope this helps!
