In the event of an undue processing delay, applicants can follow-up with the IRCC in several ways before requesting an Order of Mandamus from Federal Court.
People who want to study, work or immigrate to Canada must submit a complete and accurate application package to Immigration, Refugee and Citizenship Canada (IRCC). Sometimes though, even when the applicant has done this, the processing period can drag on for months or even years.
In the event of an undue processing delay, and as a last resort, one can request an Order of Mandamus from Federal Court to compel the IRCC to decide the case. Before doing so though, the applicant must exhaust all other options of following up with IRCC after the expected processing time has passed.
Applicants have a few options for following up on their application:
- For applications submitted after 2010, file an ATIP (Access to Information and Privacy) application requesting their GCMS (Global Case Management System) notes. If the application was submitted before 2010, the applicant can request their CAIPS (Computer Assisted Immigration Processing System) or FOSS (Field Operations Support System) notes, along with GCMS records. (GCMS replaced both CAIPS and FOSS around 2010.) Due to COVID-19, if the ATIP application was submitted by paper outside Canada, it can take six to twelve months to process it in some countries. The GCMS notes may give you an idea if anything is wrong. If the IRCC officer has noted concerns or doubts, take this opportunity to submit additional evidence addressing those doubts, especially if the immigration application is in its early stages of processing.
- File one or more webform inquiries or call the IRCC customer center to see if the IRCC can provide a substantive response.
- If inquiries to the IRCC do not work, try asking the local Member of Parliament to file a status update request. This is normally an unpaid service.
- If the applicant submitted their application by themselves and completed the above actions, ask a lawyer to submit a formal request letter via the IRCC webform.
Applicants and their lawyers are not required by law to complete all the above actions. But if they have exhausted all attempts to get information from the IRCC, they have a better case for a mandamus application.
In practice, many applicants regularly ask the IRCC for updates about the status of their application. But unfortunately, some applicants may be asking for information outside of what the IRCC can provide. For example, some applicants have used the IRCC inquiry form to ask whether they can leave Canada while waiting for their Open Work Permit. This question is asking for legal advice instead of following up on their application status. A better inquiry would be: “I am writing to you to follow up whether my application is complete and whether I need to provide additional documents.” The applicant can submit any number of inquiries, but they should focus only on asking for information the IRCC can provide.
If an applicant still cannot get any substantive update regarding their application status, they can consider other options. For example, asking a local Member of Parliament to file a status update request or hiring a lawyer to send a formal request. Regardless of what method the applicant adopts, they must remember to write politely instead of blaming the IRCC for the delay.
Applying for an Order of Mandamus
If the average processing time the IRCC posted has passed and the efforts described above were unsuccessful, then the last resort is to apply for an Order of Mandamus. The Federal Court hears requests for these orders, which compel the IRCC to make a decision about the application. The applicant might think about hiring a lawyer to help them.
Before applying to court though, the applicant and their lawyer should consider three basic questions:
- Is the application complete?
- Have they exhausted all other options to follow up with the IRCC?
- Has there been an unreasonable delay in the processing time?
If the application is not complete, this will cause delays. Hence the suggestion for confirming with the IRCC in an inquiry whether the application is complete. If the IRCC asks the applicant to submit additional documents during the processing, this will extend the processing time. If the IRCC replies that the client’s application is complete and still in processing, the applicant can move to the next step in following up.
Regarding the second question, a formal lawyer request letter is often a good choice before applying for an Order of Mandamus. Unlike a demand letter, a formal lawyer request letter not only emphasizes how much the processing time has exceeded the average processing time, but also the applicant’s efforts to follow up with the IRCC. More importantly, this letter focuses more on how the delay has negatively impacted the applicant.
In Canada, the threshold for an Order of Mandamus is high. There are eight conditions that should be satisfied to warrant an Order of Mandamus, as per the 1994 Federal Court of Appeal case of Apotex v. Canada . And one of the conditions is “balance of convenience”.
One example of balance of convenience that may be in favour of an applicant who is already in Canada is the applicant not being able to renew their driver’s license unless they provide the registry office with a valid work permit rather than a document showing the client has “maintained status” . Another example is that the applicant’s health card will likely not be renewed until the applicant presents an unexpired study permit or work permit. If the applicant has good evidence to show the balance of convenience favours them, the lawyer’s letter will be more convincing.
Regarding the third question, in 2021 the Federal Court held in Ghufran Almuhtadi v Canada that a delay may be unreasonable if the following three criteria are met:
- the delay in question is prima facie (at first glance) longer than the nature of the process required
- the applicants are not responsible for the delay, and
- the authority responsible for the delay has not provided satisfactory justification.
Patience is Key
In conclusion, no matter how confident an applicant and their lawyer are, going to court is a stressful process that takes time and money. If the applicant is waiting double or triple the average processing time – which starts the day the IRCC receives your complete application and ends when the IRCC decides on it – it may be worth going to court. But usually, I encourage applicants to be patient and try all efforts to work with the IRCC to process their application and come to a decision quickly.
Looking for more information?
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
Looking for articles like this one to be delivered right to your inbox?