MANDAMUS APPLICATION LAWYER
Mandamus is a legal remedy that compels a public authority to perform a duty it is obligated to carry out. In the context of Canadian immigration, Mandamus applications are employed when applicants experience undue delays or neglect in the processing of their immigration applications. This could include delayed responses to inquiries, stalled application reviews, or unexplained inactivity.
GROUNDS FOR MANDAMUS
In the case of Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (FCA), the court gave the following principles for invoking the writ of Mandamus:
- There must be a public legal duty to act
- The duty must be owed to the applicant
- There is a clear right to the performance of that duty, in particular
- The applicant has satisfied all conditions precedent giving rise to the duty
- There was
- a prior demand for performance of the duty;
- a reasonable time to comply with the demand unless refused outright; and
- a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.
- Where the duty sought to be enforced is discretionary, the following rules apply:
- (a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair”, “oppressive” or demonstrate “flagrant impropriety” or “bad faith”;
- (b) mandamus is unavailable if the decision-maker’s discretion is characterized as being “unqualified”, “absolute”, “permissive” or “unfettered”;
- (c) in the exercise of a “fettered” discretion, the decision-maker must act upon “relevant”, as opposed to “irrelevant”, considerations;
- (d) mandamus is unavailable to compel the exercise of a “fettered discretion” in a particular way; and
- (e) mandamus is only available when the decision-maker’s discretion is “spent”; i.e., the applicant has a vested right to the performance of the duty.
- No other adequate remedy is available to the applicant
- The order sought will be of some practical value or effect
- The Court in the exercise of its discretion finds no equitable bar to the relief sought
- On a “balance of convenience,” an order of mandamus should (or should not) be issued.”
The duration of the delay will be a significant factor, particularly in assessing the anticipated processing time versus the actual delay. Evaluation will also include the impact of the delay on the applicant and any resulting disadvantages.
In the immigration sphere, a mandamus writ, or mandamus application, is employed to petition the Federal Court of Canada to compel the issuance of a decision by IRCC for an immigration application that has been unduly delayed. Typically, a delay is deemed unreasonable when it exceeds the average processing time indicated on the IRCC website. However, the assessment of reasonableness is contingent upon the unique circumstances of each case.
It was held in the case of Re Civil Service Association of Alberta, Branch 45 and Alberta Human Rights Commission et al. (1975), 1975 CanLII 997 (AB KB):
“A delay will be considered unreasonable if-
(1) the delay has been longer than the nature of the process required, prima facie;
(2) the applicant and his counsel are not responsible for the delay; and
(3) the authority responsible for the delay has not provided satisfactory justification.”
BALANCE OF CONVENIENCE
According to the case of Apotex Inc. v. Canada (Attorney General) (C.A.), 1993 CanLII 3004 (FCA), for invoking the balance of convenience test, three separate questions must be raised:
“(1) does the Court have the discretion to invoke the “balance of convenience” test as a ground for refusing mandamus?
(2) if so, what are the criteria for its exercise? and
(3) is this a case in which mandamus should be refused? I shall deal with each of the questions as required.”
PROCESS OF MANDAMUS
- Letter of Demand: Begin by sending a letter to the Department of Justice (DOJ) and the visa office, requesting action on your immigration application. Outline the intention to file a writ of mandamus, providing IRCC with 25 business days to resume processing before considering legal action,
- Filing Application and Perfecting Record: File an application for leave and judicial review, including serving the DOJ. If the Application for leave is accepted, a court date is scheduled. Prepare and file a legal factum, presenting personal details and legal arguments for the mandamus. Negotiate throughout the proceedings and discontinue if an agreement is reached.
- Hearing: Both parties present legal arguments and evidence in a three-hour hearing presided over by a judge.
- Decision: A decision is reached with the judge either granting the writ of mandamus or dismissing the case. Appeals are rare, and legal costs are not typically awarded unless special reasons exist.
IMPORTANCE OF LEGAL REPRESENTATION
Legal representation is essential in immigration mandamus cases for its role in ensuring individuals have expert guidance in presenting a strong case. Lawyers provide valuable assistance in preparing necessary documents, including demand letters and applications, and effectively manage negotiations and proceedings. In mandamus matters, legal representatives play a crucial role in articulating robust legal arguments, understanding administrative law, and advocating for the applicant’s rights. Their expertise significantly enhances the chances of success, facilitates settlements, and ensures that immigration law complexities are adequately addressed, thereby increasing the likelihood of a favorable outcome for the applicant.
In conclusion, the Mandamus application proves to be a crucial recourse for individuals encountering delays in Canadian immigration processes. This legal tool, that offers a pathway to prompt action from immigration authorities. The significance of Mandamus lies in its ability to address unreasonable delays, ensuring applicants receive fair consideration within a reasonable timeframe. The outlined process, from a demand letter to potential judicial review, underscores the structured approach in utilizing Mandamus. Overall, this legal avenue serves as a vital mechanism for individuals seeking timely and equitable outcomes in the complex landscape of Canadian immigration.
At Kozyrev Law, our commitment is to provide unwavering legal support in navigating the complexities of Canadian immigration through our specialized Mandamus application services. We understand the urgency and challenges individuals face in dealing with delays, and our dedicated team strives to craft compelling demand letters, initiate judicial reviews if necessary, and advocate for timely decisions. With a nuanced understanding of Mandamus principles, we work tirelessly to ensure our clients receive fair consideration within reasonable timeframes, offering a steadfast legal ally in their immigration journey.
Note: The information presented in this article is not intended to constitute legal advice. It is recommended to refer to official government publications and guidelines for accurate and up-to-date information. For obtaining legal advice tailored to the specific circumstances of your case, it is advised to consult with a qualified professional.