Victor IngAs we enter the third year of the global COVID-19 pandemic, there are no longer any doubts that the pandemic has wreaked havoc on Canadian immigration application processing times. With a reported backlog of nearly two million applications, many applicants are losing patience with the Department of Immigration, Refugees and Citizenship Canada (IRCC) and are looking for ways to expedite their applications. Facing extraordinary delays, these applicants are turning to the judicial remedy of ‘mandamus’, which is an order issued by the Federal Court to compel a government department such as IRCC to process their applications.
When the pandemic struck two years ago, it seemed obvious that operational challenges would interfere with IRCC’s ability to process existing and new immigration applications. After all, many applications were still being submitted by mail and there were few, if any, immigration officers going to the office to open and process them. Delays were also expected for applications submitted online while officers were transitioning to a new work from home model and because many other aspects of immigration processing, such as obtaining police clearances, passport submission, and the collection of biometrics (fingerprinting), were affected by shutdowns.
In addition to these operational challenges, backlogs have grown exponentially due to some unexpected factors. These include IRCC’s allocation of resources to resettle Afghan refugees, which we are once again seeing with the humanitarian crisis developing in Ukraine. Backlogs have also grown due to the large number of new applications received in 2021 with the creation of novel programs like the “Temporary Resident to Permanent Resident” (TR to PR) pathway in May 2021. IRCC received approximately 88,000 TR to PR applications and have processed only about 40% of them to date.
As an immigration lawyer, I have spoken with many clients who are anxious to hear back from IRCC about their applications. Many of them have been waiting for decisions for two or more years and they have already tried to contact IRCC for status updates. In most cases, rather than receiving any helpful feedback, they are receiving boilerplate responses to their inquiries, if any at all. As a result, many of them are turning to the Federal Court for mandamus orders.
‘Mandamus’ is a Latin word meaning ‘we command’. It is a judicial remedy compelling the performance of a public legal duty that is owed to an applicant.
In the immigration context where application processing fees are paid, IRCC owes a public legal duty to each immigration applicant to finalize their application within a reasonable time because they cannot enter or remain in Canada without applying to IRCC for the appropriate visa or permit, and there is simply no other decision-maker that they can turn to for relief.
To obtain a mandamus order, an applicant must file a formal application with the Federal Court that is followed by several rounds of legal arguments. If successful, the Federal Court will issue an order to compel IRCC to process an application without delay.
Before granting a mandamus order, however, the Federal Court must hold a hearing to determine whether there has been an unreasonable delay in IRCC’s processing of an application. As part of this determination, the Court will consider factors like the standard
processing times for an application and whether the applicant has contributed to the delays. Furthermore, the Court must be satisfied that the applicant has issued a prior demand (referred to as a demand letter) for the expedited processing of their case and that IRCC has failed to comply with the demand within a reasonable time or simply ignored or refused it.
Over the past two years we have seen an unprecedented backlog of cases develop because of the COVID-19 pandemic. While the judicial remedy of mandamus has always been available to applicants, it has received much more attention in the past year with increased processing times and rising frustrations amongst applicants.
As immigration lawyers, we know that applying for a mandamus order is an effective tool for clients because there are few things that attracts IRCC’s attention to an application more than the prospect of having to justify their delays in Federal Court. In many cases, a concise and compelling demand letter prepared by experienced counsel is sufficient to get an application moving again within the IRCC queue, without having to go to the Federal Court at all. Applicants who are experiencing lengthy delays and want to take a proactive approach to combating these delays should explore this judicial remedy if they have exhausted other options and have not received any substantive responses from IRCC.
