Immigration taking their time? Consider an application for mandamus

Immigration taking their time? Consider an application for mandamus

Author/ Adam Hummel

Immigration Minister Ahmed Hussen

Every now and then, knowing a little Latin will get you a long way.  When it comes to immigration matters, it is not unheard of for the Canadian immigration regime and its agencies, such as Immigration, Refugees and Citizenship Canada (“IRCC”) to take their time in processing your application. Certain applications just take longer to process than others, while other applications just end up on the desk of a visa officer who has too much work on his desk. 

To get a sense of how long your application should take to process however, approximate processing times are posted online to give you a general sense of how long it should take the appropriate decision maker to render their decision. These processing times can be found at http://www.cic.gc.ca/english/information/times/  

However, it is not always the case that things go as planned. Sure, there are sometimes complicating factors and complex cases that take longer time than others to process, but sometimes your case just does not get the attention it deserves. In those cases, and as the saying goes, ex nihilo nihil fit (nothing comes from nothing) and if you want a result, you need to put a bit of additional effort in to push your application over the finish line. 

If you find yourself in the situation where you have had an application pending with IRCC for what you believe is too long, aside from writing to them and urging them to move your case along, there is also a judicial remedy. That remedy is called seeking an order for mandamus. 

An order for mandamus is a judicial remedy in the form of an order from a court to any government subordinate agency or public authority to do something specific which that body is obliged to do under law. The word mandamus comes from the Latin for “we command.” 

Essentially, you are asking a court to order an agency under their authority to do something. Let me give you an example for how this works.

Example – overseas spousal sponsorship application 

I was recently retained by someone in Canada who sponsored her husband for permanent residence from overseas. He lives in Sri Lanka, and they submitted their spousal sponsorship application almost four years ago. During our meeting, we looked online at the processing times, which advised that the average processing time for an overseas spousal sponsorship application was 17 months. There were no complicating factors such as criminality, inadmissibility, or medical concerns, and my client was now entering her 44th month of waiting for a decision to be made. She was frustrated, and simply wanted her husband to join her in Canada. 

After considering our options, we decided to carpe diem (seize the day) and begin the process of seeking an order for mandamus from the Federal Court.

We sent a demand letter to the Canadian High Commission in Sri Lanka, demanding that they complete the processing of the spousal sponsorship application within a specific period of time. When we did not hear back by our deadline, we filed an application at the Federal Court, asking for an order for mandamus. We were asking the Federal Court to order the High Commission in Sri Lanka to finish processing their application and render a decision. 

We are happy to report that a few weeks later, my client’s husband received a notice to send in his passport so he could get his Canadian visa, which would allow him to travel to Canada and get landed as a permanent resident, and be reunited with his wife and infant son. 

We believe that the pressure we applied to IRCC, through our seeking a court order that they render a decision on the application, resulted in our client’s application being processed. 

Tempus fugit (time flies) sometimes when you are waiting for an application to be processed, but it can also tick by very slowly when you are waiting for a loved one to join you from overseas. For this reason, it is important to know what your rights are to ask, and, if necessary, demand, that your application be processed in a timely manner. 

Each application differs however depending on its facts, and it is for this reason that it helps to work with a lawyer who can assist you with all types of applications, and who has familiarity with the Canadian immigration regime. If you have an application that has been pending for what you believe is too long, then a lawyer at Mamann, Sandaluk & Kingwell LLP will be happy to help you obtain a prompt decision. 

This blog is not intended to serve as a comprehensive treatment of the topic, nor is it intended to be legal advice. Since every case is fact-specific, nothing replaces retaining an experienced and qualified lawyer who can help guide your actions and give you good legal advice. 

1.Though hopefully you learned some handy Latin phrases while reading. 

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