When to make mandamus?

[legalfalcon]

See https://bit.ly/324vuib

 

[alidonkaka6]

You cannot be a citizen of any other nation since you are an Indian citizen. If you have any other form of official document from the Nepalese government, you should update your status accordingly. Otherwise, as the member above mentioned, a letter of explanation should suffice.

 

[dpenabill]

Another forum participant recently shared what a lawyer advised regarding the prospect of proceeding with a Writ of Mandamus where an application has been pending several years. It is an excellent outline of the process. I am editing slightly to remove personal information. Basically the lawyer stated that the case presented (per the details in that case) suggested a strategy as outlined:

Application for “mandamus” with the Federal Court​

A “mandamus” application at the Federal Court can be an effective way to incite – or compel – IRCC to finalize an application suffering from unreasonable delays in processing. The steps . . . would be as follows:

1. Send a notice to the processing office that you will file a mandamus application if your application is not finalized within 60 days.
2. At the same time, request internal notes on your file via an ATIP request (1-2 months).
3. Put IRCC’s legal department on formal notice that we will file an application for mandamus if your citizenship application is not finalized within 30 days.
4. If there is no progress on the citizenship application within 30 days, file the application for mandamus with the Federal Court. Note: if the ATIP notes have not been received yet, we must wait until we receive them to file the mandamus.
5. Contact IRCC’s lawyer to discuss settlement (meaning, discontinuing the court case in exchange for IRCC’s written engagement that they will finalize the application within a certain time frame).
6. If there is no decision on the citizenship application or settlement within 30 days of filing the application for mandamus, prepare and submit the applicant’s record (full legal arguments, affidavit, evidence, etc.)
7. IRCC’s lawyers would send us their record 30 days later. We would then have the opportunity to submit a memorandum in reply.
8. 2-3 months later, the Court would either grant or deny leave on the application.
9. If leave is denied, this would end the proceedings.
10. If leave is granted, the Court would schedule a hearing, usually 2-3 months later. We would have the opportunity to submit further written arguments at that stage. We would then rediscuss settlement with IRCC’s lawyers.
11. If we are successful on a hearing, the Court would compel IRCC to make a decision on your case. IRCC takes these orders seriously, so we could expect the application to be finalized shortly after that.

Some notes:

In regards to the preliminary demand phase, this lawyer describes TWO demand related notices; a notice preceding the "formal notice" to IRCC. My past observations about this procedure have only described one demand letter, the "formal" demand, that is a clear prerequisite to qualifying for a Writ of Mandamus. I assume this lawyer knows his stuff and the structure and content of this suggests that is indeed the case. So, even though I do not know that this two-notices-demand approach is technically necessary, I assume it is at least a best-practices approach.​

​

In regards to the timelines. Those for procedures once the application is made to the Federal Court seem rather optimistically short to me. But I do not actually know. It is possible the lawyer's timelines are typical, where in contrast all I see are the most contested cases in published Federal Court decisions.​

A Caveat; The key tipping point in the procedure:

The key tipping point is obvious: what IRCC does in response to the notice/demand. The lawyer outlines this as follows:

There are five main possible outcomes before step 4:

1. IRCC finalizes the application and convokes you to a citizenship ceremony.
2. IRCC convokes you to an interview with a citizenship officer.
3. IRCC refers your file to a citizenship judge for a hearing.
4. IRCC requests additional documents from you, e.g., a fingerprints request.
5. IRCC does not do anything.

All but outcome 5 would mean that we would not proceed to steps 4 to 11 (a mandamus would not have a chance of success if there were a document request or scheduled interview pending).

Obviously which of these happens will depend a lot on the particular merits of the case. I would add one more to the list, and that is that IRCC could respond that the application is still in process, potentially enumerating further steps to be taken or vaguely refer to something like it is in the process of conducting or waiting for additional background screening. What action the lawyer would then take is mostly dependent on the particular details in the specific applicant's case . . . and, in particular, if there is identified a concrete reason why IRCC is still engaged in further processing of the application.

In any event, thought this content was worth sharing in a Mandamus specific topic.

 

[kukestoronto]

Another forum participant recently shared what a lawyer advised regarding the prospect of proceeding with a Writ of Mandamus where an application has been pending several years. It is an excellent outline of the process. I am editing slightly to remove personal information. Basically the lawyer stated that the case presented (per the details in that case) suggested a strategy as outlined:



Some notes:

In regards to the preliminary demand phase, this lawyer describes TWO demand related notices; a notice preceding the "formal notice" to IRCC. My past observations about this procedure have only described one demand letter, the "formal" demand, that is a clear prerequisite to qualifying for a Writ of Mandamus. I assume this lawyer knows his stuff and the structure and content of this suggests that is indeed the case. So, even though I do not know that this two-notices-demand approach is technically necessary, I assume it is at least a best-practices approach.​

​

In regards to the timelines. Those for procedures once the application is made to the Federal Court seem rather optimistically short to me. But I do not actually know. It is possible the lawyer's timelines are typical, where in contrast all I see are the most contested cases in published Federal Court decisions.​

A Caveat; The key tipping point in the procedure:

The key tipping point is obvious: what IRCC does in response to the notice/demand. The lawyer outlines this as follows:


Obviously which of these happens will depend a lot on the particular merits of the case. I would add one more to the list, and that is that IRCC could respond that the application is still in process, potentially enumerating further steps to be taken or vaguely refer to something like it is in the process of conducting or waiting for additional background screening. What action the lawyer would then take is mostly dependent on the particular details in the specific applicant's case . . . and, in particular, if there is identified a concrete reason why IRCC is still engaged in further processing of the application.

In any event, thought this content was worth sharing in a Mandamus specific topic.

Thank you for such a wonderful job you have done.I have a Q do I need special forms to Send a notice to the processing office for delay or just PDF