By way of Further Observations . . . including reference to a recent case before the Federal Court involving an application pending for
TWENTY YEARS . . .
Given that slow processing tends to invite periodic queries about Mandamus, and the persistent albeit unfounded recurrence of responses erroneously suggesting there is a time-based threshold beyond which Mandamus may be warranted, it is important to emphasize:
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.
BUT it is just as important to recognize that if and when there is an inordinately excessive delay in processing, that can signal something is awry. As I suggested in my first post, and again just above in response to
@Shpetim_2019, an extraordinarily long timeline can indicate reason to make inquiries or pursue recourse.
Many times there is a REASON why an application has stalled much longer than others in the same local office. Sometimes that REASON can be addressed and resolved. Other times it simply explains why. Generally applicants have at least a fair idea what's up and why. Despite many protesting otherwise.
In any event, my previous observations should NOT be understood to discourage proactive efforts to discover, identify, and address real issues. And actually Mandamus may be a viable approach to addressing some issues.
If the only issue is that the processing is exceedingly slow, PATIENCE tends to be the name of the game, and WAITING and WATCHING for IRCC notices is how that game is played.
In contrast, if indeed it appears that IRCC is NOT proceeding to process the application, then WHY the application is stalled, WHY it is NOT being processed, is far, far more important than HOW LONG it has been pending.
NOTE/REMINDER: It still appears that IRCC policy generally is to NOT notify applicants when processing the application has been suspended pursuant to Section 13.1 in the Citizenship Act. It is also NOT clear that this will show up in an applicant's version of the GCMS notes shared in response to a generic ATIP request. There have been somewhat recent discussions in Federal Court decisions suggesting that IRCC continues to fail to notify applicants that processing is suspended even in response to queries about the application's status. It appears that IRCC might acknowledge an application has been suspended only if there is a fairly direct request for this information.
That said . . . TWENTY YEAR delay may be enough to support Mandamus.
Last week (Monday, December 2) the Federal Court was scheduled to hear an application for a Writ of Mandamus in regards to an application for citizenship made TWENTY YEARS ago. I do NOT know the outcome of that hearing. I do not know if TWENTY YEARS is enough to justify granting a Writ of Mandamus. My sense is that the outcome of that case, like almost all citizenship and Mandamus cases, will depend as much on OTHER factors as it does the length of time involved.
But that case suggests adding a clarification to my previous remarks. In particular, in a narrow and largely indirect way, a very lengthy processing time can be perceived to be inordinate and a relevant factor in alleging grounds for Mandamus. Because of that, in the past here my reminder that "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," has sometimes generated a vociferous challenge.
As Justice Anne L. Mactavish has stated, Mandamus may be warranted in the context of a grant citizenship application in "
unusual circumstances," where there are "
inordinate and unexplained delays."
Justice Mactavish made that statement in Stanizai v. Canada (Citizenship and Immigration), 2014 FC 74 (CanLII),
http://canlii.ca/t/g2wb9 which is a decision I have cited and linked multiple times in this forum. And it is the decision I was referencing in my previous post, regarding the issuance of the Writ where a CJ approved the application and CIC did not timely appeal.
There is a difference, usually a huge difference, between slow processing, even exceedingly slow processing, and "unusual circumstances" where there are "inordinate and unexplained delays."
As I noted in my previous post, this is a subject I've addressed more than occasionally here. Almost always in response to queries and responses which suggest that the availability of Mandamus may depend on HOW long an application has been pending, with this or that suggestion as to what timeline will render Mandamus a potentially available remedy. While there are some references to two and a half years, the most commonly cited
how-long-is-long-enough criteria is three years, which derives in large part from case law well over a decade ago, including Justice Barnes decision in Gondara v. Canada (Minister of Citizenship and Immigration), 2006 FC 204 (CanLII),
http://canlii.ca/t/1mm7n which involved an individual for whom a decision had been made and the oath scheduled, and it was not until the day of the oath that CIC suspended processing.
But numerous cases since then have reaffirmed that there are no grounds for mandamus based merely on the amount of time a citizenship application has been pending. (Note: in recent years even the approach taken by Justice Mactavish in Stanizai has been significantly curtailed given the very broad provision, that is Section 13.1 in the Citizenship Act, allowing IRCC to suspend processing added to the Citizenship Act in 2014.)
The "three year" criteria has been argued before the Federal Court, purportedly based on "established case law," such as it was in Tayeb Ali v. Canada (Citizenship and Immigration), 2016 FC 1051 (CanLII), [2017]
http://canlii.ca/t/gw1qc where the petitioner and citizenship applicant (without counsel) argued "on the basis of established case law, a three-year timeframe is sufficient to process a citizenship application." The case law cited included Justice Mactavish's decision in Stanizai and a Human Rights Commission case. Neither of which support the three-year proposition. And that argument was brushed off albeit based on the facts in the particular case.
This leads back to the observation that
WHY an application is stalled,
WHY it is NOT being processed, is far, far more important than HOW LONG it has been pending.
Most applicants have a fair idea what's up and why. Notwithstanding many protests to the contrary. And, indeed, the vast, vast majority of applicants who know of no reason why their application might be stalled have NO REASON to worry, as it is unlikely their application is stalled but, rather, merely bogged down in slow processing.
But as already noted, yes, an inordinately excessive delay in processing can signal something is awry. Whatever that "something" might be, a specifically directed inquiry as to the application's status and, specifically, whether or not there has been any suspending of processing, may be warranted. May not be much the applicant can do about it. But if there is a hold or the application is suspended, it can be important to find out this is what is happening, and why, and determine what recourse might be available. Which might include Mandamus, not because of the time delay but if the reason for the delay is unjustified.
SOME ADDITIONAL OBSERVATIONS:
Most of the citizenship application Mandamus cases in the last four or five years are related to PR-refugee cases and the suspending of processing pending potential cessation proceedings, most of which I have discussed including many I have cited and linked in another topic specifically about the impact of cessation on PR-refugees applying for citizenship. Some of the earlier cases in this subset resulted in a Writ of Mandamus, ordering CIC/IRCC to proceed with the citizenship application. More recent cases tend to go the other way based on Section 13.1 in the Citizenship Act. For example, see Lezama Cerna v. Canada (Citizenship and Immigration), 2019 FC 756 (CanLII),
http://canlii.ca/t/j0qwh and Canada (Citizenship and Immigration) v. Nilam, 2017 FCA 44 (CanLII), [2018] 2 FCR 511,
http://canlii.ca/t/h1s6l (the latter is a Federal Court of Appeal decision, which establishes a binding precedent; Federal Court decisions, in contrast, do not establish binding precedent, even though in many contexts their legal rulings represent the current law).
With some exceptions. Which brings this back around to the individual whose citizenship application was made TWENTY YEARS ago. And his application for Mandamus which was scheduled for a Federal Court hearing December 2, 2019. While generally the courts are allowing IRCC to suspend citizenship application processing pending inquiry (let alone actual proceedings) as to PR-refugee cessation, in the two cases involving Mr. Sharafaldin, whose citizenship application for citizenship has been pending for twenty years, it is the RPD which has postponed cessation proceedings pending the outcome of the citizenship case. And in Canada (Public Safety and Emergency Preparedness) v. Sharafaldin, 2019 FC 1168 (CanLII),
http://canlii.ca/t/j2cx1 the Federal Court sustained the RPD's decision to wait for the outcome of the citizenship application (referencing the December 2, 2019 hearing date for the citizenship mandamus case).
