What is writ of mandamus?
A writ of mandamus is a judicial remedy to compel a public authority to perform its duty under the law. In immigration law, when you experience an unreasonable delay, a writ of mandamus is sought to force IRCC to process your immigration application and render a decision.
A writ of mandamus can be sought when there is an unreasonable delay in processing an immigration application, or when there is an implicit refusal to process an application. This can apply to various immigration programs, including study permits, work permits, visitor visas and permanent residence.
It is an exceptional remedy that is highly dependent on the facts of each case. The strength of your case will depend on your application, expected processing times, whether you are responsible for the delay and how long you have been waiting for a decision.
A properly prepared letter of demand and application will be important to present your strongest arguments. The immigration system faces an increasingly large immigration backlog. If your application has been delayed for a period of time, a writ of mandamus for your permanent residence application or temporary resident application can assist in the processing.
What is the legal test for a writ of mandamus?
The Federal Court has developed the legal test for a writ of mandamus in case law.
- There must be a public legal duty to act
- The duty must be owed to the applicant
- There is a clear right to the performance of that duty, in particular
- The applicant has satisfied all conditions precedent giving rise to the duty
- There was
- A prior demand for the performance of the duty
- A reasonable time to comply with the demand unless refused outright
- A subsequent refusal which can be either expressed or implied, such as an unreasonable delay
- Where the duty sought to be enforced is discretionary, consideration must be given to the nature and manner of exercise of that discretion
- No other adequate remedy is available to the applicant
- The order sought will be of some practical value or effect
- There is no equitable bar to the relief sought
- On a “balance of convenience,” an order of mandamus should be issued.
If you are responsible for the delay, you cannot file a writ of mandamus. For example, if your application is pending because you have not provided a medical examination or provided an incomplete application, you cannot seek a writ of mandamus.
The writ of mandamus will most likely succeed or fail on two key factors: 1) whether it is an unreasonable delay and 2) whether, on a balance of convenience, an order of mandamus should be issued
Unreasonable delay: The length of the delay will be an important factor, especially when considering the expected processing time and the delay. The effect of the delay on the applicant and any resulting prejudice will be considered.
For example, if you are unable to work since IRCC has taken a considerable amount of time to process your work application and this is substantively beyond the expected processing times, this may be a factor that would deem the delay unreasonable.
While the processing times to process an application are not legally binding, they are providing an overview of expected and reasonable processing times.
Balance of convenience: The unreasonable delay will be weighed against all the circumstances in your application. Delays caused by COVID-19 have not been accepted by the Federal Court,
[1] especially delays before and after the pandemic.
However, IRCC may be able to demonstrate that the delay is reasonable in your specific circumstances, such as a security check with another country.
