Compelling Government Action on Your Immigration File

I have written and spoken about the remedy of mandamus before; I will be doing so again at the CBA Alberta-North Immigration Section on October 27, 2022.

What is mandamus? In essence, the Federal Court has the power to compel IRCC, or Canada Border Services Agency to do something that they should be doing. More formally, mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays (Vaziri v. MCI 2006 FC 1159 (CanLII) at para 38).

Mandamus is a prerogative writ, a traditional remedy, which were all “primarily vehicles for ensuring that the administrative arms of government were kept under control” (Mullan, Administrative Law, 5th edition, p. 1093). It is a remedy that is derived from the traditional role of the courts in administrative law which is to ensure that government officers comply with the requirements of their governing statute.

It is clear that the demand and mandamus process will be essential tools for every immigration lawyer given the backlogs that exist in virtually every immigration business line.

Justice Norris summarized the relevant principles in a recent case:

[32] Paragraph 18.1(3)(a) of the Federal Courts Act, RSC 1985, c F-7 provides that, on an application for judicial review, the Federal Court may “order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing.” Pursuant to subsection 18.1(4) of the Federal Courts Act, such relief may be granted if, among other grounds, the reviewing Court is satisfied that the federal board, commission or other tribunal “refused to exercise its jurisdiction.” While the term is not used here, there is no question that this power encompasses the common law prerogative writ of mandamus. See also paragraph 18(1)(a) of the Federal Courts Act, which expressly grants this Court the power to issue a writ of mandamus. As well, when a reviewing court refers a matter back to an administrative decision maker, this may be subject to “such directions as it considers to be appropriate” (Federal Courts Act, paragraph 18.1(b)).

[33] Justice Little recently offered the following concise description of the remedy of mandamus:

Mandamus is an order that compels the performance of a public legal duty. The duty is typically set out in a statute or regulation. An order of mandamus is the Court’s response to a public decision-maker that fails to carry out a duty, on successful application by an applicant to whom the duty is owed and who is currently entitled to the performance of it. The test for mandamus thus requires careful consideration of the statutory, regulatory or other public obligation at issue, to determine whether the decision-maker has an obligation to act in a particular manner as proposed by an applicant and whether the factual circumstances have triggered performance of the obligation in favour of the applicant.

(Wasylynuk v Canada (Royal Mounted Police)2020 FC 962 at para 76)

The writ of mandamus typically comes up in terms of forcing immigration to process already submitted applications for permanent residence, citizenship and applications for TRVs and permits. Less commonly, mandamus can be used to compel IRCC or CBSA to make a decision as to whether enforcement action will be taken against the applicant.

If you are contemplating mandamus, you will need to ensure that you meet the necessary preconditions of mandamus: see Dragan v. MCI 2003 FCT 211 at para 39.

(1) There must be a public legal duty to act.

(2) The duty must be owed to the applicant.

(3) There is a clear right to the performance of that duty, in particular:

(a) the applicant has satisfied all conditions precedent giving rise to the duty;

(b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.

(4) No other adequate remedy is available to the applicant.

(5) The order sought will be of some practical value or effect.

(6) The Court in the exercise of discretion finds no equitable bar to the relief sought.

(7) On a “balance of convenience” an order in the nature of mandamus should issue.

Mandamus is another tool in the arsenal for accountability and oversight. These days there are many public bodies (like CSIS) that have a paucity of oversight. The remedy of mandamus means that there is at least a modicum, a veneer, of oversight by way of the Federal Court on federal tribunals and decision makers.

In determining whether the delay is excessive, the Courts have typically turned to the decision in Conille:

[36] In Conille v Canada (Minister of Citizenship and Immigration)1998 CanLII 9097 (FC), [1999] 2 FC 33, which also concerned a long-delayed decision on a citizenship application, Justice Tremblay-Lamer held (at 43) that three requirements must be met for delay to be considered unreasonable:

  • (1) the delay in question 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 a satisfactory justification.

Ideally, the person concerned should have requested their immigration file/GCMS notes by way of an ATIP request. Reference should be made to posted time-frames but these may not reflect the fact that the delay is longer than the nature of the process required. While IRCC has beaten the now largely dead horse of the pandemic as an excuse for delay, the Courts are pushing back:

(ii) The Pandemic

[40] Without more information, I do not find the Pandemic to be a satisfactory justification. In Almuhtadi, Justice Ahmed did not find that the Pandemic fully explained the delay, as a delay of three and a half years already existed before the Pandemic began in March 2020 (at para 47). In this case, there was already a delay of 19 months by March 2020. The delay was already unreasonable by the time the Pandemic began in March 2020.

[41] I recognize that, in a proper factual context, the Pandemic may explain a further delay from March 2020 to date. However, the impact of the Pandemic is not a satisfactory justification without more detail on how it has affected Express Entry applications. I am unable to take judicial notice of the impact that the Pandemic has taken on the delay in these particular circumstances because there are both pre-Pandemic and post-Pandemic delays at play. Furthermore, the Pandemic has been a gradual part of life since March 2020, and processes have slowly resumed (Almuhtadi at para 47). All institutions throughout Canada have also adapted to addressing backlogs and delays to varying degrees of success.

So, what do you have to do to compel government action? I suggest the first few steps include

  • the preliminary identification of the correct Respondent;
  • request and review of an Access to Information Request. This will establish the relevant timelines, the communication to and from IRCC/CBSA and the applicant. Review of those notes will also help ensure that there is nothing outstanding on the part of the Applicant and can perhaps shed light on the reason for the delay.
  • Determining whether the delay in question is “inordinate” (review the case law, and understand the context within which the application and decision take place within IRPA), and
  • drafting and sending a demand for performance (the “demand letter” (somewhat of a condition precedent to a mandamus application, lest the court refuse relief based on prematurity).

The purpose of the demand is to get a decision or get the Respondent to take a meaningful next step.

Failing an adequate response you can file an application for leave and judicial review and for mandamus.

After the application is filed, you will receive a Rule 9 response. Many times the response is unhelpful –something along the lines that there is no decision because no decision is made.

It is possible that the DoJ will consent either early on or during the litigation process. Make sure they give clear and specific time frames. There’s little point in agreeing to a vague consent and then returning to the drawing board in 6 months if there’s no further movement on the file.

In terms of litigation, the process is the same as other immigration judicial review applications. You will need to file your record 30 days after receipt of the Rule 9 request. The Applicant’s record of course, includes an affidavit from your client, exhibits and your argument along with relevant case law. The Access to Information Request that you made well before any of this will likely be attached as an Exhibit. Another exhibit will be correspondence (the “demand letter or letters”) sent by your counsel. The affidavit should outline the necessary facts to support the argument. Your argument and the legal test will necessarily inform the evidence that you need to provide. It may well contain your (multiple) efforts to communicate (in a variety of forms, from fax, couriered written correspondence, telephone messages) with the Respondent’s officers. If they do not respond, so much the better. Say so. It will simply be sauce for the goose.

Your affidavit should (obviously) not contain any argument. Length is no indication of quality. If you know the legal test you need to meet and have written the argument first, then drafting the affidavit will be simple and will not contain the superfluous verbiage that most affidavits prepared by most lawyers contain.

It’s tough to fit a square peg into a round hole. Mandamus may simply not be available for many situations. If you do have a round peg for your round hole, mandamus may be a perfect remedy. Once the Record is filed the DoJ will have 30 days to respond. Our office almost always files a Reply to their argument (due 10 days after receipt of their argument). The Federal Court then determines whether leave will be granted or not. If leave is granted, the hearing will be set down in a couple of months. It’s entirely possible that the filing or perfection of leave may result in some action on the file. It’s also possible that the Court may not grant leave and you may have to take another crack at mandamus some time down the road (sometimes mandamus is like breaking up with a girlfriend or tipping over a vending machine — it may require more than one attempt).

There is helpful jurisprudence including:

Justice Phelan’s decision in Hamalipoor:

[19]            The Respondent says that it has a satisfactory justification for the delay – it is awaiting the CSIS update. However a review of the file shows that there was a considerable amount of bouncing the file or parts of it between various parts of the Respondent’s organization as well as between it and other government agencies.

[20]            This internal scurrying about with no actual progress is not a satisfactory justification for delay.

[21]            Furthermore it is not adequate to pass the buck and avoid responsibility by blaming delays on another government organization. An applicant’s right to a decision is an obligation on the Government of Canada acting through the responsible minister. It is the Respondent’s obligation to cause the necessary steps within government so that the rights under the statute are fulfilled.

Justice Norris’ decision in Sharafaldin discussing the “directed verdict”:

[40] In some cases, an applicant for judicial review may maintain that, separate and apart from any question of unreasonable delay, they are entitled not only to a decision but to a particular outcome. Mandamus in this form is available “only where the facts and law are such that the administrative decision-maker has no choice and must determine the matter in a particular way” (Sexsmith v Canada (Attorney General)2021 FCA 111 at para 40). This is consistent with the general proposition that, in exceptional circumstances, a reviewing court may render the decision that should have been rendered by the administrative decision maker when that decision maker “could not reasonably come to any other decision on the facts and the law” (Canada (Attorney General) v Philps2019 FCA 240 at para 41). This is warranted because “no practical end” would be served by returning the matter to the decision maker: see Stemijon Investments Ltd v Canada (Attorney General)2011 FCA 299 at paras 52-53. As well, prolonging the matter by referring it back to the administrative decision maker could cause prejudice to the affected party and undermine confidence in the administration of justice: see Philpsat para 42; see also LeBon v Canada (Attorney General)2013 FCA 55 at para 14, and Canada (Citizenship and Immigration) v Tennant2019 FCA 206 at paras 72-74 (“Tennant FCA”). The reviewing court will therefore make an exception to the usual rule and decide the underlying matter on its merits.