We have helped hundreds of applicants and their families when their cases and their lives were seemingly stalled for years awaiting a decision on a permanent or temporary visa application. The solution was Mandamus.
A writ of mandamus or simply mandamus, which means “we command” in Latin, is the name of one of the prerogative writs in the common law, and is issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.
Mandamus is a judicial remedy which is in the form of an order from a superior court to any government, subordinate court, corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision.
The applicant pleading for a writ of mandamus to be enforced must demonstrate that s/he has a legal right to compel the respondent to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities:
- It must be a duty of public nature; and
- The duty must be imperative and should not be discretionary.
For the court to issue a writ a mandamus, a number of conditions must be satisfied.
- 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; (ii) 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.
- 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 discretion finds no equitable bar to the relief sought.
- On a “balance of convenience” an order in the nature of mandamus should issue.
When contemplating whether to commence a mandamus application, counsel should make reference to the processing times listed on the CIC website. Unreasonable delay can only be determined in comparison to average processing times. In submissions, counsel should focus on the normal processing times and how much the processing time in question has exceeded the average, what the applicant has done to ensure that his/her application is complete and well documented, and reasons why the applicant feels that the officer’s explanation for the delay is unsatisfactory.
In this respect, the Courts in most cases have refused to accept departmental backlogs, or staff shortages as reasonable explanations, nor do they tend to look to the system as a whole. Rather, each case is assessed on its own facts. The question often arises as to whether a background or security check constitutes a justifiable explanation for the delay. As with the other prongs of the test, this is a determination which can only be made with reference to the specific facts of the case. Counsel must tailor the arguments to the facts of the case at hand, with particular attention paid to what the applicant has been doing to move his case along, and what the respondent has failed to do to perform their duty.
No Other Adequate Remedy is Available to the Applicant
In the immigration context, this prong of the test is easily satisfied – an officer is the only person in a position to grant the remedy that the applicant is requesting – namely, the issuance of a visa or other immigration document.
The Order Sought will be of Some Practical Value or Effect
Again, this is rarely an issue in a mandamus application in the immigration context. Generally speaking, given that the order will compel the officer to process the application in question within a given time frame, the practical effect of the order is obvious.
In the Exercise of Discretion there is No Equitable Bar to the Relief Sought.
Under this prong of the test, the Court is looking to determine if the applicant has been responsible for the delay and/or has compromised their cause in any other way. The applicant must come to the Court “with clean hands”, in order to satisfy the Court that there is no equitable bar to an order of mandamus. This however does not mean an applicant as in the case at bar with a criminal history cannot seek relief. To the contrary an applicant with a criminal history that has sought relief on the basis of section 24 of the IRPA for example has a right to have that application decided in a reasonable period of time.
Balance of Convenience
Mandamus requires the Applicant to show that the balance of convenience favours the Applicant. This last prong of the test is closely related to the “clean hands” question discussed above. This issue relates to the prejudice that the applicant suffers as a result of the delay. Mandamus remains a very powerful option for applicants.
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