As the Canadian immigration backlog continues, people are seeking judicial remedies to become new Canadians. COVID-19 has undeniably caused a delay for Immigration, Refugees and Citizenship Canada (IRCC) to process immigration applications, however, the Federal Court of Canada has declared that it does not negate the IRCC’s decision-making capacity since governmental processes have slowly resumed and decisions are being made (Almuhtadi v. Canada (Citizenship and Immigration), 2021 FC 712). The number of judicial remedies sought through mandamus applications have increased seven times over the past three years, where applicants have gone to the Federal Court of Canada in an attempt to force the department to process the applications.
What is a Writ of Mandamus (Application)?
A mandamus application (‘writ of mandamus’) is a method for asking a court to order the government to perform a duty that is owed to the public. For mandamus to be issued, the application must meet certain legal criteria.
In the context of immigration, it is a judicial route used to ask the Federal Court of Canada to order the IRCC to perform the legal duty owed to an applicant; that is, issue a decision on an immigration application when an immigration application has been pending for an unreasonable amount of time. If the Federal Court finds that an order of mandamus is warranted, the IRCC is required to process an applicant’s immigration application on an expedited basis and outlines a certain time period in which the decision must be made.
Notably, a mandamus application requires the administrative tribunal (IRCC) to make a decision rather than requiring a decision to be made by the Federal Court via the mandamus application.
Applications Referred by the Federal Court for the 2021/2022 Year
As of February 28, 2022, a total of 445 mandamus applications were referred by the Federal Court for the 2021/2022 year. Although an expensive and tedious process, it can speed up the application process if the Federal Court agrees that mandamus is warranted.
A number of cases referred by the Federal Court have addressed the impact of COVID-19 on the application process, noting that while COVID-19 could explain delays in processing, it would not excuse delays that occurred prior to the pandemic (Aguirre v. Canada (Citizenship and Immigration), 2021 FC 678). Additionally, the pandemic has not always been a satisfactory justification to fully explain the delay as many delays existed years before the pandemic began (Bidgoly v. Canada (Citizenship and Immigration), 2022 FC 283). It was also noted that it was unreasonable that the impact of COVID-19 was differentially impacting applicants from Western countries less than other countries (Djikounou v. Canada (Citizenship and Immigration), 2022 FC 584).
In all the cases mentioned above, the applications were granted mandamus. In these cases, the Federal Court required that the remaining steps in the application process ought to be completed and a final decision on the application was to be made within a certain period of time.
Conclusion
Noting that 445 (and counting) mandamus applications were referred by the Federal Court since 2021, these applications remain one of the most effective tools used when there has been an unreasonable delay in the processing of an immigration application. When used properly, they can be very effective at moving an application along, albeit they should only be used as a last resort.
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