Mandamus

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:

  1. It must be a duty of public nature; and
  2. 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.

  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:
  4. The applicant has satisfied all conditions precedent giving rise to the duty;
  5. There was:
    1. a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and
    2. a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.
  6. No other adequate remedy is available to the applicant.
  7. The order sought will be of some practical value or effect.
  8. The Court in the exercise of discretion finds no equitable bar to the relief sought.
  9. 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.

If you have any questions about your case please contact us to discuss what may be involved in seeking a mandamus remedy.

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What Our Clients Are Saying
pratik thaker
pratik thaker
We had great experience working with team of Bellissimo Law Group. They are the best in what they do and were able to get us successful H&C application result. i would highly recommend anyone having immigration needs, please reach out, they are expert and know what they are doing. Thank you team for all the efforts you put in our case.
Yuri l
Yuri l
I contacted Bellissimo Law Group for some immigration matters and must say they were more than alert, thorough, patient, and very knowledgeable. I thank them for all they have done for me. A special thanks to Alexandra Goncharova who were very understanding and did a great job.I would highly recommend this firm to anyone with any legal needs concerning Canadian immigration.
bhautik bvaidya
bhautik bvaidya
I highly recommend Bellisimo Law group PCBellissimo Law Firm has been an incredible support for our family during one of the most challenging times. My mother faced an unexpected medical situation with no prior history just before her PR medical was requested, leaving us overwhelmed and unsure of our next steps. From the moment we met with Mario, Keely, and the team, we felt assured and in expert hands. They guided us through every step with professionalism, patience, and genuine care, especially in addressing the complex medical inadmissibility concerns. Keely’s clear guidance on the mitigation plan and the entire team's dedication made all the difference. Thanks to them, we’ve received our Passport Submission Request for PR. If you're facing an immigration challenge, particularly with medical issues, Bellissimo Law Firm is simply the best. Our deepest gratitude to the whole team for their hard work, compassion, and commitment. Thank you from our entire family!" Thanks to Mario and Keely once again for doing great work and always connecting with me with positive energy during this Journey !
Allison Kurtz
Allison Kurtz
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Gods child
Gods child
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Joseph Myatt
Joseph Myatt
Truly worth everything with these guys.I came in with a very complicated case and was so daunted by the whole process. Upon acquiring their services I was immediately calmed. They’re very thorough with their work and let you know exactly what they need to do. I had the pleasure of dealing with Viola Gniadek on my case a lot, and she was nothing short of superb. She handled any question or query we had quickly and promptly. All while doing so with such an amazing attitude. Not to mention she was dealing with it all with opposite sides of the world time zones!Would 110 percent recommend Bellissimo Law group for any immigration help! I tip my hat!
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Shankhnad Ghurburrun
Shankhnad Ghurburrun
Good service. Lijing and her team were very supportive and put in the time and were accessible online when we needed to make urgent and speedy changes. Once the application was made, it took less than 2 weeks for approval!.
Matthew
Matthew