Mandamus?
- Thread starter h3a3j6
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That's precisely my question. WHAT is the acceptable "time" to send a mandamus? People on the forum are mentioning 6 months, there was a 3-year timeline before...
I think an official answer to this question is important because it can be leveraged by everyone and set a precedent.
I think an official answer to this question is important because it can be leveraged by everyone and set a precedent.
Some quick observations (may explain more later):
-- Since August 2014, it appears that an application for leave to make the Mandamus application is the only path to Mandamus available in citizenship cases; that is, one must ask for and obtain the Federal Court's permission to even make the mandamus application; this is more difficult and it warrants emphasis that these applications were very difficult before this change in law (Bill C-24 restricting access to judicial review, eliminating the right of appeal).
-- While length of delay (not just length of time processing, but actually a delay in processing) is a relevant factor, the length of time does NOT constitute grounds for mandamus; remember, the applicant must show that the government's delay in processing amounts to an effective denial.
-- While mandamus has worked in some instances, generally it is not an effective expenditure of time, money, or effort; to successfully navigate the process, one of the more competent lawyers should be retained, not just any lawyer. Self-representation is possible but the odds against success are daunting.
-- Since August 2014, it appears that an application for leave to make the Mandamus application is the only path to Mandamus available in citizenship cases; that is, one must ask for and obtain the Federal Court's permission to even make the mandamus application; this is more difficult and it warrants emphasis that these applications were very difficult before this change in law (Bill C-24 restricting access to judicial review, eliminating the right of appeal).
-- While length of delay (not just length of time processing, but actually a delay in processing) is a relevant factor, the length of time does NOT constitute grounds for mandamus; remember, the applicant must show that the government's delay in processing amounts to an effective denial.
-- While mandamus has worked in some instances, generally it is not an effective expenditure of time, money, or effort; to successfully navigate the process, one of the more competent lawyers should be retained, not just any lawyer. Self-representation is possible but the odds against success are daunting.
OK, I'll follow your rationale: let's try to answer this one then...dpenabill said:
How does one show that the government's delay in processing amounts to an effective denial? There should be an indicator by which an application is deemed taking an unreasonable amount of time and it's effectively equivalent to a denial...
CIC is a sleazy department, they never write specific deadlines for absolutely anything. Go and figure out what is and is not acceptable. If you ask me, after someone has sent the notice to your CPC, if there is no reply in a month, they should be liable.h3a3j6 said:
Anyway, can you keep us updated if you will talk to an immigration lawyer?
I don't know if one has to show there has been an "effective denial." One has to show that one is owed a duty by a public official and that official is failing to perform said duty. Nobody knows how long the length of time is in any particular case before a mandamus will be effective. I disagree with dpenabill that overall length of processing is never a factor. At some point, processing times become objectively unreasonable--such as when it passes the length of time required to qualify for citizenship in the first place, effectively doubling the statutory time to become a citizen (w/o an act of Parliament). This limit was commonly breached during the waning years of the Harper regime and there were a number of reported cases here of a Mandamus application being effective in getting the ball rolling on stalled cases. Whatever the difficulty of actually prevailing in court, what you should really be aiming for with a Mandamus application is getting IRCC/CIC to take action on the file without actually having to go to court. Of course, if what Dpenabill says now about having to ask for leave to file for Mandamus is true that makes it that much more difficult. Still, a few sternly worded letters from a lawyer threatening Mandamus may achieve the same thing as an actual petition, especially if followed up with a letter to the local MP. Sometimes IRCC/CIC actually does respond to these things.....h3a3j6 said:
Did I mention that it is difficult to successfully bring a Mandamus action to compel CIC/IRCC to take action on a citizenship application? If I failed to mention that, it is, difficult that is. Yes, it is indeed difficult to show that the delay in processing an application amounts, in effect, to a de facto denial. Quite difficult.h3a3j6 said:
Mandamus has been denied applicants whose applications were pending for years.
It is not about "is failing," but has in fact failed. The writ is based on the actual failure of a public official to carry out what that official has a clear to duty to have done.links18 said:
I said that the length of processing is not grounds for Mandamus. Obviously the length of time that has elapsed is a "factor."links18 said:
Yes, indeed. And this was experienced by thousands, perhaps tens of thousands who applied between 2010 and 2012.links18 said:
And yes, the fact that the overall processing time has been objectively unreasonable would be a factor.
But it is not grounds. It is not enough to compel a Federal Court to order the Minister of IRCC to take a specific action.
The extent of injustice perpetrated on thousands whose applications were unreasonably delayed between 2010 and . . . well we still see some 2010 applicants still mired in processing (I just responded to a PM about two such applicants late yesterday), five plus years into it . . . . was staggering, disappointing, alarming, unacceptable, but ultimately without recourse except through the democratic process and throwing out the bums who for nine years governed with a blatant disregard for due process and reasonable governance.
Compared to the thousands, probably tens of thousands, bogged down for years and years of processing, there were a few, very few sporadic cases in which Mandamus was actually ordered by the Federal Court. There were also a significant, albeit still quite small number of reports that the commencement of Mandamus proceedings triggered, or apparently triggered, CIC to take action on the application.links18 said:
No Federal Court decision echoed any indication that the overall length of time was a deciding factor (a factor, yes, but other factors having more weight). A more significant factor was the length of time elapsed since any action was taken. Any action at all tended to foreclose a Mandamus order. For example, a referral, by CIC, to update background clearances would indicate CIC was "processing" the application, therefore had not effectively denied the application, no Mandamus order available.
In the meantime, despite the large number of applications continuing to wallow with inordinate, unreasonably long processing time lines, it has been a long time since the last Federal Court decision in a Mandamus action, either for or against. I attribute this to the change in August 2014 (part of Bill C-24) which eliminated the right of appeal . . . to the extent applicants are seeking Mandamus, it appears they are being summarily denied leave (thus, no formal decision is published by the Federal Court).
Or CIC, or more recently IRCC, recognized that action on the file was warranted and took action, and the application was withdrawn. Probably some of this has happened. For most, though, I suspect lawyers told prospective Mandamus clients it was not worth the cost and effort.
But in some cases, it is probable CIC (or IRCC) took action following the preliminary demand. Leading to . . .
I do not mean to foreclose the idea of pursuing mandamus in some cases:
As anyone who reads much of my observations should readily recognize: I do not ordinarily advocate a one-rule-fits-all approach.
That is true relative to Mandamus. Sometimes it is appropriate and a good idea to begin the process for pursuing Mandamus. (First step is properly making the requisite demand that the Minister do what the Minister's duty compels the Minister to do.)
The when and why, however, are not answered by just how long it has taken IRCC to take action.
And again, the likelihood of successfully pursuing Mandamus is low enough generally, but without a competent lawyer it is really low. Even in making the requisite demand, the first preliminary step, a lawyer doing that could make the difference that matters. There is an impression that demand letters from clients themselves are not taken very seriously . . . whereas the best-bang-for-a-buck is a demand letter that motivates IRCC to take the next step soon . . . so if it is going to be worth pursuing Mandamus, it is probably worth paying a lawyer to do the demand letter.
A long way around to saying, if Mandamus is the route one thinks they want to go, lawyer-up, with a good lawyer. Maybe see your banker first, since it is going to cost.
I would add to the above that "making progress" on a file should be meaningful progress, which to me wouldn't mean rerunning clearances that have already expired multiple times, while waiting for nothing. I agree with Dpenabill that it is probably wise to hire a lawyer to do a demand letter before making the investment in Mandamus, but I am far less pessimistic than he is on the ultimate utility of Mandamus when a delay has been clearly egregious, even if the initial goal is to force action rather than actually prevail in court. But it is a cost benefit analysis each person has to make for themselves. Dpenabill is right that it would probably be difficult to find a competent lawyer to do it, especially outside the GTA, Montreal or Vancouver. Good luck in Winnipeg, where the immigration bar is not deep.