Canadian Immigration: Recently, the Canadian federal courts made decisions in two cases about how long it took to handle applications for immigration and study permits.
In both cases, the candidate asked the court to issue a writ of mandamus to force Immigration, Refugees, and Citizenship Canada (IRCC) to process their application.
A writ of mandamus is a legal measure that asks IRCC or another administrative body to make a decision within a certain amount of time.
In one case, the main applicant, Tala Ghaddar, along with her husband and three children, asked the court to issue a writ of mandamus to force IRCC to process their application for permanent residence, which was made more than six years ago, in 2016.
The family used Express Entry to send in their application, and they were chosen through the Provincial Nominee Program (PNP). In 2017, Ghaddar got an invite from the PNP to apply for permanent residency. Since 2018, Ghaddar had asked IRCC many times for details on her application, but they never gave her enough information.
The court decided that the family met the requirements for an order of mandamus because the delay was clearly unacceptable and unfair given the situation. Also, IRCC couldn’t give any reason or answer for why the delay happened.
The court told IRCC to finish handling the family’s application within 90 days and gave the family $1,000 in costs for having to wait so long.
In a similar case, the applicant wanted a writ of mandamus telling IRCC to decide on his application for a study pass.
The individual had a Bachelor’s degree and a Master’s degree from Canada’s Zhejiang University and was accepted into the PhD program at the University of British Columbia. In 2021, he sent in his application for a study pass.
The court said that the application couldn’t show that the delay hurt him a lot because he could start the program from China. Also, there was no real discrimination because “he can always go somewhere else to study.”
The most important thing that can be learned from these cases is that a writ of mandamus is an unusual relief that can only be given when a number of conditions are met.
As these cases show, it can be hard to meet the conditions and requirements for a mandamus, and it will only be granted when there is real harm and the applicant has no other good way to fix the problem.
If your application is taking a long time, you may be able to use a writ of mandamus. However, this is usually a last choice. There are other steps you should take before a mandamus that could be helpful.
What options do you have?
The IRCC has service standards that say how long applications usually take to process. But these working standards can be delayed, which means that processing times are longer than the IRCC’s service standard.
The first thing you should do is make sure that all paperwork and forms are up to date so that you don’t have to wait longer than necessary. You can also check the status of your application on IRCC’s website, which has a processing tool that is supposed to show true wait times.
You can also fill out a webform or call the IRCC customer service center to find out what’s going on with your application and find out why it’s taking so long.
If IRCC doesn’t answer your questions or doesn’t answer them well, you might be able to ask a local member of Parliament to file a request for a status report.
You can also make an ATIP, which stands for “Application for Access to Information and Privacy.” An ATIP is a request for the Global Case Management System (GCMS) notes of a potential candidate.
You can also ask for their Computer-Assisted Immigration Professional System (CAIPS) notes or their Field Operations Support System (FOSS) notes, in addition to the GCMS notes.
The IRCC officer may have questions or worries about your application, which will be written in the notes.
This will let you know if there is a problem with your application. It also gives you the chance to send in more paperwork or proof to solve any problems or concerns.
Lastly, you might think about getting a lawyer to use IRCC’s webform to send a formal request letter. This letter will talk about how the delays in your application have hurt you a lot and what you’ve already done to get in touch with IRCC.
How do times for application processing get calculated?
The time it takes IRCC to process an application is based on how long it took in the past to process 80% of applications.
Processing times start when IRCC gets your full application and end when they make a decision about it.
Since every application is different and takes a different amount of time to process, IRCC can’t tell you exactly how long it will take to process yours. But they do give you an estimate based on what kind of application you have.
For example, it takes nine months to process an Express Entry application from a provincial nominee, but it only takes seven weeks to process an application from outside of Canada for a study pass.
Summary:
- The Writ of Mandamus speeds up processing.
- Two mandamus orders.
- Mandamus relief requires substantial harm and no viable options.
- Current paperwork.
- Verify application status.
- Request GCMS, CAIPS, and FOSS notes
- Formal request through Lawyer.
Frequently Asked Questions on Canadian Immigration
1. What is a writ of mandamus in the context of Canadian immigration applications?
A writ of mandamus is a legal remedy that compels administrative bodies, like Immigration, Refugees, and Citizenship Canada (IRCC), to make a decision on an application within a specific timeframe. It is used when there are unreasonable delays in processing immigration applications.
2. When would I consider using a writ of mandamus for my immigration application?
Using a writ of mandamus should be a last resort. If your application faces excessive delays and you’ve exhausted other options to address the issue, you might consider this legal measure.
3. What are the key conditions for obtaining a writ of mandamus?
To be granted a writ of mandamus, you need to demonstrate real harm caused by the delay and show that you have no other feasible options to resolve the problem. The delays must be unacceptable and unfair in your specific circumstances.
4. What preliminary steps should I take before seeking a writ of mandamus?
Before considering a writ of mandamus, ensure all required paperwork is up to date and accurate. Check your application status on IRCC’s website and use their processing tool for accurate wait time estimates. Contact IRCC’s customer service or use other channels to understand the reason for the delay.
5. Can I involve my local Member of Parliament (MP) to address the delay?
Yes, you can request your MP to file a request for a status report on your behalf. This might help escalate your case within the administrative system.
6. What is an ATIP, and how can it help my case?
ATIP stands for “Application for Access to Information and Privacy.” It allows you to request your application notes from various systems, such as GCMS, CAIPS, and FOSS. These notes might reveal any concerns or issues with your application that you can address.
7. Should I consider hiring a lawyer for help with a writ of mandamus?
Consulting a lawyer could be beneficial if your case meets the conditions for a writ of mandamus. They can help you navigate the legal process and draft a formal request letter to IRCC outlining the impact of the delays on your situation.
8. How are processing times determined by IRCC?
Processing times are estimated based on historical data – the time taken to process 80% of similar applications. Actual processing times vary due to the unique nature of each application.
9. Can processing times change after I submit my application?
Yes, processing times can change due to various factors, causing delays beyond the original estimate.
10. Are there specific processing timeframes for different types of applications?
Yes, IRCC provides estimated processing times for different types of applications. These times are subject to change based on workload and other factors.
11. Can I speed up my application process?
While you can’t control processing times directly, ensuring accurate and complete documentation, staying informed about your application status, and using available communication channels can help you stay on top of the process.
12. Is a writ of mandamus guaranteed to speed up my application?
No, a writ of mandamus is not a guaranteed solution. It is a legal option that is granted under specific circumstances when there is significant harm caused by unjustified delays.
13. Can I appeal a decision related to my application processing time?
Typically, processing time decisions are administrative and not subject to formal appeals. However, you can explore legal avenues like a writ of mandamus or consult a lawyer for advice on your specific situation.
