Get Moving! How Mandamus Can Fast-Track Your Stuck Visa/PR Application

Get Moving! How Mandamus Can Fast-Track Your Stuck Visa/PR Application

Introduction

It may echo a spell from the world of Harry Potter, with its results appearing just as enchanting! Mandamus is a judicial command by the Federal Court of Canada, mandating (hence the name!) administrative bodies like Immigration, Refugees, and Citizenship Canada (IRCC) to accelerate the processing of visa and PR applications that may have stalled. 

Building on our previous exploration of solutions for excessive processing delays, this article explores the origins of mandamus, its pivotal role in Canadian immigration law, and its potential to be the resolution you've been seeking for your application.

What is mandamus?

As with many mechanisms of Canadian law, we owe mandamus to ancient English law. Indeed, in English and Canadian law, mandamus is a “writ”, or an order by a competent court to act or abstain from acting. The word “mandamus” itself means “we command” in the Latin language. 

Mandamus and judicial review are, in fact, closely related mechanisms that are fundamental to the principle of the separation of powers. Under the judiciary branch, the courts must ensure that the government adheres to the law. Through mandamus, the courts exercise their authority to direct governmental bodies and administrative agencies, ensuring that their actions align with legal standards and principles, including the duty to efficiently and diligently process the requests received by themselves.

The ever-important role of mandamus in Canadian immigration law

In Canadian immigration law, mandamus can be a critical tool in ensuring that your application does not seemingly stall in its processing. That said, specific legal criteria need to be met for a Court to render a mandamus order. We will also outline the legal process for a mandamus application. 

Requirements for a mandamus

The requirements for an order like mandamus to be issued in the context of immigration applications (such as PR and visa) have been set out, clarified, and applied by the Federal Court itself. These requirements are listed in a test originating from a decision of the Federal Court of Appeals called Apotex Inc. v. Canada (Attorney General) (C.A.).

The Apotex test lists a total of eight conditions, with the third condition being subject to additional clarification in subsequent decisions:

• 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 performance of the duty; 
    • a reasonable time to comply with the demand unless refused outright; and 
    • a subsequent refusal that can be either expressed or implied, e.g. unreasonable delay. 
• Where the duty sought to be enforced is discretionary, certain additional principles apply. 
• No other adequate remedy is available to the applicant. 
• The order sought will be of some practical value or effect. 
• The Court in the exercise of discretion finds no equitable bar to the relief sought. 
• On a balance of convenience, an order like mandamus should be issued.

The determination of whether a particular client’s case meets the Apotex test is a complex question. Some of the relevant factors include the type of application (some applications such as PR require more processing time than study permits, for instance), its average processing time, as available on IRCC’s website, the period elapsed since submission, prior requests via webform to request expedited processing, as well as the possible mitigating factors that might justify the longer delays, such as international security concerns regarding a specific application. 

Process for a mandamus application

For individuals and legal practitioners familiar with the intricacies of judicial review, the process of applying for a mandamus order to expedite immigration applications will appear notably similar. The framework of an Application for Leave and Judicial Review (ALJR), along with its procedural steps, forms the basis for mandamus applications, albeit with certain specific adjustments to suit the unique requirements of a mandamus action. Instead of setting aside IRCC’s decision, the Federal Court orders IRCC to render a decision within a specific timeframe (30 days, for instance). However, the Court cannot normally direct the outcome of this decision.

To facilitate a deeper understanding of this process, we highly recommend visiting our detailed blog post, which comprehensively outlines the procedural steps involved in applying for judicial review. 

Conclusion

Securing a mandamus order can be a pivotal step in accelerating your Canadian visa or PR application process. Understanding the importance of this legal action and its impact on your application timeline is crucial. At Canadian Future, our legal expertise in navigating the mandamus process is aimed at breaking through administrative delays, and ensuring your application is processed promptly. 

Let us be your guide. Booking a consultation with us means securing expert assistance tailored to expedite your visa or PR application. We're committed to simplifying your Canadian visa journey, ensuring a smooth and effective path toward achieving your Canadian Future.

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