Experiencing delays in your Canadian immigration application? A writ of mandamus may be helpful

Published on August 17th, 2023 at 08:00am EDT

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The Canadian federal courts have recently ruled on two cases concerning processing delays in immigration and study permit applications. In both cases, the applicant asked the court to issue a writ of mandamus to compel Immigration, Refugees and Citizenship Canada (IRCC) to process their application.

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A writ of mandamus is a judicial remedy that asks the courts to order IRCC – or another administrative entity – to issue a decision within a specified period of time.

In one case, the principal applicant Tala Ghaddar, her husband and three children asked the court to issue a writ of mandamus to compel IRCC to process their application for permanent residence, which was filed more than six years ago, in 2016.

The family submitted their application through Express Entry and had been nominated under the Provincial Nominee Program (PNP). In 2017, Ghaddar received an invitation to apply for permanent residence under the PNP. Since 2018, Ghaddar had requested updates from IRCC on numerous occasions and received insufficient information regarding her application.

The court ruled that the family met the requirements for an order of mandamus, considering the delay was clearly unacceptable and unreasonable in the circumstances. Further, IRCC was unable to provide any justification or explanation for the delay.

The court required IRCC to complete processing of the family’s application within 90 days and awarded the family costs of 1,000$ for keeping the family in the dark for so long.

In a similar case, the applicant was seeking a writ of mandamus directing IRCC to make a decision on his study permit application. The applicant had a Bachelor’s degree and Master’s degree from Zhejiang University in Canada and was accepted into the University of British Columbia PhD program. In 2021, he submitted his study permit application.

The court ruled that the applicant could not demonstrate that he suffered significant prejudice as a result of the delay, as he was able to start the program remotely in China. In addition, there was no serious prejudice as “it always remains open to him to pursue studies elsewhere”.

The important implication of these cases is that a writ of mandamus is an extraordinary remedy that requires cumulative conditions to be satisfied in order for a mandamus to be issued. As exemplified by these cases, the conditions and requirements for a mandamus can be difficult to achieve and will only be granted in situations where there is serious prejudice and no other adequate remedy is available to the applicant.

If you are facing serious delays in your application, a writ of mandamus may be an option for you, however it is usually a last resort. There are other steps you should take before a mandamus that may be helpful.

What are your options?

IRCC has service standards that set out the usual processing times for applications. However, there can be delays to these processing standards, which means that processing times are longer than IRCC’s service standard.

The first thing you should do is ensure that all documentation and required applications are up to date in order to avoid unnecessary delays. You can also check your application status on IRCC’s website, which has a processing tool that is meant to accurately show the expected wait times.

You can also file a webform inquiry or call the IRCC customer center to inquire about your application and get a substantive response and reasoning for the delay in your application. If the inquiries to IRCC go unanswered or are unsatisfactory, you may be able to ask a local member of Parliament to file a status update request.

In addition, you can file an ATIP, or an Access to Information and Privacy Application. An ATIP is a request for an applicant’s Global Case Management System (GCMS) notes. Along with the GCMS notes, you may also request Computer Assisted Immigration Professing System (CAIPS) notes or their Field Operations Support System (FOSS) notes.

The notes will have information about the IRCC officer’s concerns or doubts about your application and will give you an idea if there is an issue with your application. It also provides you with the opportunity to submit additional documentation or evidence to address any issues or concerns.

Finally, you may consider hiring a lawyer to submit a formal request letter via IRCC’s webform. This letter will discuss how the delays in your application have seriously impacted you and the efforts you have already taken to follow up with IRCC.

How are processing times calculated?

IRCC’s processing times are historical, meaning they are measured based on how long it took to process 80% of applications in the past.

Processing times start the day IRCC receives your complete application and ends when they make a decision in it.

IRCC is unable to tell you exactly how long it will take them to process your application, as each one is different and takes a different amount of time to process. However, they do provide an estimate based on your application type.

For example, provincial nominees applying through Express Entry should expect processing times of nine months, while a study permit application from outside Canada is expected to be seven weeks.

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reference: www.cicnews.com

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