Mandamus in Canadian Immigration

In Canadian immigration, delays can sometimes be as harmful as refusals. Applicants may wait months — even years — for Immigration, Refugees and Citizenship Canada (IRCC) or the Immigration and Refugee Board (IRB) to make a decision on their case. When these delays become unreasonable and cause hardship, the legal remedy of mandamus may be available.

A writ of mandamus is an extraordinary remedy from the Federal Court of Canada that compels an immigration authority to perform its legal duty — in other words, to make a decision when it is unlawfully delaying one.

What is Mandamus?

Mandamus is a judicial order that directs a public authority (such as IRCC or the IRB) to act where:

• The authority has a clear duty to decide, and
• It has failed to do so within a reasonable timeframe.

It does not decide the outcome of your application (approval or refusal). Instead, it forces IRCC/IRB to process and decide your application in accordance with the law.

The 8-Part Test for Mandamus

The leading case Apotex Inc. v. Canada (Attorney General), [1994] 1 FC 742 (CA) established an eight-part test that applicants must satisfy to succeed in mandamus.

1. Public legal duty to act – IRCC/IRB must have a clear duty under the law to make a decision.
2. Duty owed to the applicant – The duty must be owed specifically to you, not the public in general.
3. Clear right to performance – You must have met all conditions of your application (e.g., submitted documents, paid fees, completed biometrics/medicals).
4. No discretion left – The authority must not have the option to simply refuse to act; they must eventually decide.
5. Ministerial act required – The duty involves making a decision, not a broad policy choice.
6. No other adequate remedy – Reapplying or waiting longer is not sufficient. Mandamus must be the only effective remedy.
7. Practical value in granting mandamus – The order must have a real effect (e.g., forcing IRCC to decide within a set period).
8. Equitable relief appropriate – The Court must be satisfied it is fair to order IRCC to act, balancing your rights with administrative realities.

In practice, Federal Court judges often condense these into three core questions:

• Does IRCC/IRB have a legal duty to decide?
• Has the applicant done everything required and been waiting unreasonably long?
• Is mandamus the only practical solution?

When is Mandamus Available?

Mandamus is considered when:

• Permanent residence applications are stuck in processing for years.
• Work permits or study permits are unreasonably delayed despite biometrics and medicals being complete.
• Refugee hearings are not scheduled within a fair period.

Security Checks and Mandamus

What Security Checks Are

Security checks are part of Canada’s admissibility process under IRPA. They may involve:

• CSIS (Canadian Security Intelligence Service) – screening for terrorism, espionage, or national security risks.
• RCMP – criminal record and law enforcement database checks.
• International partners – Interpol or allied country databases.

Why They Cause Delays

• IRCC depends on external agencies, which may take months or years.
• Complex travel histories, military service, or work in sensitive sectors often trigger extended reviews.
• IRCC rarely shares details, citing security confidentiality.

How Courts Handle Delays

• Security screening is recognized as necessary.
• But delays must still be reasonable. In Conille v. Canada (1999 FC), the Court warned against leaving applicants in “administrative limbo.”
• Courts weigh the length of delay, the transparency of updates, and whether the delay is proportionate to case complexity.

Outcomes

• DOJ Consent: Often the Department of Justice agrees to resolve the delay, committing IRCC to act within a set timeline.
• Court Order: A judge may compel IRCC to decide or provide evidence of progress.
• No Guarantee of Speed: Sometimes the Court accepts the delay but requires IRCC to give regular updates.

The Mandamus Process

1. Demand Letter – Lawyers usually begin with a written demand to IRCC/IRB.
2. Application for Leave and Judicial Review – Filed in Federal Court, requesting an order of mandamus.
3. DOJ Response – The government may argue the delay is justified (e.g., by security checks or workload).
4. Court Decision or Settlement – Many cases resolve through DOJ consent, with IRCC committing to process within a timeline. If not, the judge decides.

Case Law and Legal Standards

• Apotex (1994 FCA): Established the 8-part test for mandamus.
• Conille v. Canada (1999 FC): Confirmed IRCC has a duty to process applications within a reasonable time.
• Baker v. Canada (1999): Reinforced fairness obligations in immigration decision-making.
• Vavilov (2019 SCC): Clarified that decisions must be reasonable and justified — including how delays are handled.