Given significant Covid-19 related delays in the processing of visa and permanent residence applications, our Federal Court practice has seen significant mandamus application and we get many questions regarding this judicial remedy and this FAQ is designed to address some of the most common questions we get.
In addition to this FAQ, you can learn more about this topic in How Can a Writ of Mandamus Help With Your Immigration Application?
What is a Writ of Mandamus?
A writ of mandamus is a discretionary remedy which seeks to compel the performance of a public legal duty that is found either in a statutory provision or at common law. A full overview of the Writ of Mandamus can be found here.
How does this remedy relevant to my permanent or temporary residence visa application?
In the case of Canadian immigration related applications, a writ of mandamus is used to compel IRCC to make a decision with respect to a pending immigration application.
The writ is sought in the context of an Application for Leave and Judicial Review submitted to the Federal Court of Canada, asking the Court to order IRCC to issue a decision. While this may seem complicated or unattainable, this is actually our firm does with great success, in part due to our legal expertise and in part because of how essential the rule of law is to Canada.
Can I seek a Writ of Mandamus if I am Outside of Canada?
The writ of mandamus remedy is available to applicants who have submitted an immigration application to IRCC from inside or outside of Canada. You location or residence at the time the application is filed or when the matter is considered by the Federal Court is irrelevant.
Can I seek a Writ of Mandamus with respect to a temporary residence application such as a work or a study permit?
Absolutely, and we have helped clients get their work and study permit applications approved by filing a writ of mandamus.
Why Seek a Writ of Mandamus as opposed to submitting a Case-specific Inquiry asking IRCC to process the application?
IRCC is inundated with a large volume of case-specific inquiries — and, unfortunately, the majority are not properly considered. That means many people may be consistently left without the answers they need. And that can be frustrating, to say the least.
Seeking a writ of mandamus at the Federal Court forces IRCC to respond which in most Covid-19 related delays means that the client sees significant movement or an approval shortly after the Application for Leave and Judicial Review is filed.
Will Filing a Mandamus Adversely Affect my Immigration Application?
As experienced Canadian immigration lawyers in Toronto, we’ve heard this question on countless occasions. In fact, it’s the one we are asked most frequently as clients are concerned about IRCC “punishing” them for taking them to court.
It’s understandable that anyone trying to apply for residence in Canada would feel concerned, but no: filing a mandamus will NOT adversely affect your application, and IRCC will not punish you.
The rule of law is fundamental to Canada as a country, and a writ mandamus is a legal remedy available to applicants who believe they have been subject to an unreasonable delay in the processing of their immigration application.
Can you tell us more about the actual mandamus process?
The writ of mandamus application follows the typical judicial review process and starts with the filing, issuance, and service of an Application for Leave and Judicial Review requesting a Writ of Mandamus. Amongst other things, the Application for Leave and Judicial Review sets out the key facts with respect to your case as well as the relief you are seeking. It is important to ensure that the prima facie case for a mandamus order are met and that the facts are presented in a clear and persuasive fashion.
You can find the steps of a judicial review process here. When it comes to Covid-19 related delays in processing permanent residence applications, this first step is often sufficient in pushing IRCC to continue and/or complete processing within 30-60 days of filing.
What do I need to do to start the mandamus process?
After we sign the retainer agreement and provide us with an advance to be held in our secure trust account, we start working on your matter.
It is important to note that you as our client do not need to do anything other than provide us with documents and instructions. We take care of the process of start to finish, and even if a hearing is scheduled (Covid-19 delay based cases rarely make it to this stage), you do not need to attend it, as judicial review hearings proceed based on the paper record before the Court.
Generally speaking, it takes our law firm between two to three business days from the receipt of the relevant documents to prepare a mandamus application.
Take the First step Towards Your Mandamus Application
We hope this guide has provided you with a valuable insight into mandamus applications, and you feel more confident about beginning the process.
At Abramovich & Tchern, we’re immigration lawyers helping employers, individuals, and businesses from across the globe. We work with clients from the United States, Latin America, India, and a plethora of other regions. And we maintain strong relationships with professional interpreters, enabling us to overcome any language barrier.
To find out how Abramovich & Tchern can help you with your mandamus application, and other aspects of your immigration to Canada, contact our team today.