A mandamus order is a judicial command to a government body to do, or forbear from, doing a specific act which it is obligated in law to do.
The Federal Court’s decision in Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, is one of the most cited case in the immigration context for setting forth the test for when a mandamus order will be given. There, Justice Snider stated:
The equitable remedy of mandamus lies to compel the performance of a public legal duty that a public authority refuses or neglects to carry out when called upon to do so. Mandamus can be used to control procedural delays (Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307 at para. 149). The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), aff’d [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 (T.D.), aff’d [2003] F.C.J. No. 813, 2003 FCA 233,). The eight factors are:
(i) There must be a public legal duty to act;
(ii) The duty must be owed to the Applicants;
(iii) There must be a clear right to the performance of that duty, meaning that:
a. The Applicants have satisfied all conditions precedent; and
b. There must have been:
I. A prior demand for performance;
II. A reasonable time to comply with the demand, unless there was outright refusal; and
III. An express refusal, or an implied refusal through unreasonable delay;
(iv) No other adequate remedy is available to the Applicants;
(v) The Order sought must be of some practical value or effect;
(vi) There is no equitable bar to the relief sought;
(vii) On a balance of convenience, mandamus should lie.
Generally, all eight of the above factors must be met before a court will issue an order mandamus.
Effectiveness
Prior to filing one of our last mandamus application, it is typically necessary to send requests for the performance of the legal duty. Memorandum of law articulating what the legal duty was, why it was owed, and that the balance of convenience favored is also helpful. It is not uncommon for such an effort to produce the same result as a formal mandamus application.
Mandamus in Permanent Resident Applications
In the Vaziri decision, recently affirmed in Abdalla v. Canada (Citizenship and Immigration), 2011 FC 988, the Federal Court noted that mandamus would generally not be issued to process permanent residence applications because of the alternative remedy of the applicant obtaining a visitor visa, depending on the context.
The court stated that:
The Applicants contend that the only way for them to have “secure immigration status” is to have their applications finalized. The Respondent argues that the Applicants may take advantage of Temporary Resident Visas (TRVs) in order to reunite family members while the PR assessment process continues. These visas (often referred to as visitor visas) are obtained quickly and easily, they can be valid for fixed periods of time and they may be renewed. Our Court has found in past cases that temporary resident status, or its analogue under the repealed Immigration Act, can fulfil the objective of IRPA to reunite families (see Gupta v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1099 at para. 11 (T.D.) (QL); Zhang v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 529, 2005 FC 427, at para. 8).
As evidenced by the affidavits filed by the Applicants, the Applicants appear to premise their arguments on the desire to be reunited after many years apart. Through the use of TRVs, the father and son have at least one other way of being united. While the PR applications are being assessed, TRVs may provide interim relief
While I appreciate that the Applicants live with uncertainty while the PR applications are being resolved, and that TRVs do not provide the same security or rights as permanent resident status, the use of TRVs is an alternative that is adequate — albeit not perfect. There is no pressing need in this case that the rights vested by PR status be acquired as soon as possible.
Lengthy Wait Times and Queue Jumping
Another, and probably the most significant, reason for mandamus applications being rejected is because of how accepted long wait-times are in immigration law. Hence my previous post titled “A Two Year Delay will Not Necessarily Result in an Order Mandamus.”
As well, as recently confirmed by the Federal Court in Mersad v. Canada (Citizenship and Immigration), 2014 FC 543, mandamus will generally not be ordered where the effect of such an order would be to simply favour one application over others.
Having said this, as per the Federal Court decision in Yassin v. Canada (Citizenship and Immigration), 2018 FC 423, there is caselaw which states that neither “many levels of assessment and review” involved nor institutional reorganizations are reasons to justify delays.
Nonetheless, while mandamus should never be used as a first resort, it is an extremely effective last one, and when used properly can be very effective at moving a file along.
Disclosure
In Abu v. Canada (Citizenship and Immigration), 2021 FC 1031, the Federal Court rejected a Department of Justice argument that in a mandamus application the full Certified Tribunal Record does not need to be disclosed, and that all relevant documents need to be disclosed in the same manner as any judicial review.
Specific Results
It is also important to note that an application for mandamus is to require that the administrative tribunal make a decision. As the Federal Court of Appeal noted in Dass v. Canada (Minister of Employment and Immigration), it is not the purpose of mandamus “to require a specific decision but rather to require that a decision be taken.” For example, if there is an unreasonable CIC delay in processing an application, the Federal Court will not order that CIC process and approve the application, only that they process it.
Significant Prejudice
In Peng v. Canada (Citizenship and Immigration), 2025 FC 2, Justice Ahmed wrote on significant prejudice in the context of family reunification:
During the hearing, the Respondent stated that the Applicant’s evidence of hardship was insufficient, as the Applicant may mitigate the impact of family separation by visiting her mother on vacation or through other measures.
With respect, the record does not support this submission and it is irrelevant to the present proceeding. The Applicant’s evidence is that she and her mother face multiple health issues due to the delay with the PNP Application and that, as a result, the Applicant has been unable to work since April 2024. Given this context, the ailing Applicant failing to go on vacation to visit her ailing mother is not compelling evidence of a refusal to mitigate harm. More importantly, I agree with the Applicant that “vacation is not the same as family reunification.” Hypothetical and temporary reunions during “vacations” do nothing to address the Respondent’s failure to properly uphold the objective of family reunification, pursuant to paragraph 3(1)(d) of the This is especially so as this purpose is one of reunification in Canada, not through sojourns abroad.
Mandamus During COVID-19
In Almuhtadi v. Canada (Citizenship and Immigration), 2021 FC 712 , Justice Ahmed granted a mandamus application for an individual whose application had been in processing for five years. In granting the mandamus order, Justice Ahmed stated the following about the Department stating that the COVID-19 mitigated against the granting of mandamus:
Finally, I find the COVID-19 pandemic does not fully explain IRCC’s delay. As noted by the Applicants, this reasoning is not applicable for the period leading up to March 2020, approximately 3.5 years after the Applicants submitted their application for permanent residency. In the absence of evidence to the contrary, COVID-19 also does not negate the Respondents’ decision-making capacity for the entirety of time subsequent to March 2020. The pandemic was undoubtedly disruptive, but governmental processes have slowly resumed and decisions are being made.
As well, in Aguirre v. Canada (Citizenship and Immigration), 2021 FC 678, Madam Justice Elliot stated that while COVID-19 could explain delays in processing, it would not excuse delays that occurred prior to the pandemic.
In Bidgoly v. Canada (Citizenship and Immigration), 2022 FC 283, Justice Favel stated:
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.
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.
Finally, in Djikounou v. Canada (Citizenship and Immigration), 2022 FC 584, Justice Mosley noted that it was unreasonable that the impact of COVID-19 was differentially impacting applicants in Western countries less than other countries (in this case Ghana):
The Respondent submits that virtual interviews were not available in this instance as the High Commission did not have the technological capacity to conduct them for applicants in the region. However, it seems that no attempt was made to conduct family class sponsorship interviews by telephone. The Respondent submits that it would be inappropriate to assess the genuineness of relationships by phone. I accept that in most cases that may well be correct. But difficult circumstances, such as the pandemic, require adaptability. And, as the Applicants note, immigration detention and review proceedings which involve the liberty of the individual have been found to be acceptable to proceed over the phone. They argue, and the Court agrees, that it is not consistent with the objectives of IRPA to continue to process applications from Western countries while applications in Ghana were left to languish.
Temporary Residence
There are not many reported decisions on mandamus in the temporary residence context.
In Chen v. Canada (Citizenship and Immigration), 2023 FC 885, Madam Justice Aylen found that IRCC did not have a sufficient rationale for delays in processing a study permit application, but ruled that the Applicant did not demonstrate that she would incur significant prejudice. A significant factor in this was that the application was for a study permit. Madam Justice Aylen wrote:
However, notwithstanding these deficiencies in the Respondent’s evidence, I am not satisfied that the Applicant has demonstrated that he has suffered significant prejudice as a result of the delay. It must be kept in mind that what the Applicant seeks is a study permit. The delay has not removed any substantive right of the Applicant, but rather prevents a right to study in Canada (assuming he satisfies the required security clearance) from being vested for a period of time [see Vaziri, supra at para 50].
Notwithstanding the delay, the Applicant has been able to commence his PhD program remotely and has performed extremely well, having received numerous awards for his academic achievements. The Applicant asserts that pursuing his program remotely is difficult on his mental and physical health and is difficult due to the time difference between Vancouver and China and restrictions on internet use. He also asserts that the delay has caused him anxiety. However, I am not satisfied that this rises to the level of serious prejudice, particularly given the absence of any medical evidence in support of the assertion. Moreover, while the Applicant asserts that the delay is preventing him from progressing with his studies and potentially impacting his career path, it always remains open to him to pursue studies elsewhere and there is nothing in the evidence before me to suggest that only the program at the University of British Columbia can meet his educational objectives. Moreover, there is also no evidence that the Applicant will be unable to further defer the commencement of the in-person portion of his program. As for any potential impact that the delay may have on his career, I find that this assertion is purely speculative.
While the Applicant is understandably frustrated with the amount of time that it has taken thus far to process his study permit application, the Court must carefully review a request for a writ of mandamus to ensure that an applicant satisfies all of the necessary requirements (including significant prejudice). Otherwise, the effect of granting a writ of mandamus is to permit an applicant to “jump the queue” and have their application determined before that of others who have been patiently waiting their turn.
Procedural Fairness Letters
As Justice Battista noted in Vadiati v. Canada (Citizenship and Immigration), 2024 FC 1056:
In Jahantigh v. Canada (Citizenship and Immigration), 2023 FC 1253 [Jahantigh], Justice McHaffie considered the consequences of the issuance of a last-minute procedural fairness letter on an ongoing application for mandamus. He found that it rendered a request for an order requiring IRCC to “continue processing” the case moot, but that it did not render moot a request for an order requiring IRCC to decide the application [Jahantigh, paras. 9-12, 26] . He also noted that “not every step that has appearance of ‘processing’ will necessarily render all or part of a mandamus application moot. The circumstances of the particular case, and the nature or of the steps taken, must be assessed.” [Jahantigh, para. 13]
In the present case, the Applicant is not seeking continued processing of the application, but a decision on the application. It is clear that continuous, although sporadic and very slow, processing has taken place on the application. A relevant question for assessing the impact of the procedural fairness letter is why it has arrived at this stage, more than four years into the processing of the application. The information on which the letter is based has been with the Respondent since the time the application was filed; the Applicant fully disclosed his work with Sepah from the beginning of the process.
Security Screening
As Justice Battista noted in Vadiati v. Canada (Citizenship and Immigration), 2024 FC 1056:
Regarding the justification for the delay, the Respondent has relied upon the ongoing investigation into security concerns. The Respondent cites jurisprudence advising caution in the issuance of mandamus when it will have the impact of aborting or abbreviating an investigation into inadmissibility based on security, including Seyoboka v Canada (Minister of Citizenship and Immigration), 2005 FC 1290, paras. 8-10.
However, the potential ground of inadmissibility alleged in this case, s. 34(1)(f), applies to both permanent residents and foreign nationals. The granting of permanent residence to the Applicant would not necessarily have to abort or abbreviate the investigation, and if the investigation results in a finding of inadmissibility on the basis of s. 34(1)(f), the Respondent could still take steps to enforce the inadmissibility by removing the Applicant’s permanent resident status. The security investigation, therefore, is not a satisfactory justification for the delay.
Ministerial Relief
In Farah v. Canada (Public Safety and Emergency Preparedness), 2023 FC 1354, Madam Justice Go granted a mandamus application for someone whose Ministerial Relief application had been in process for seven years, citing the following cases in which shorter delays were found to be unreasonable:
- Esmaeili‑Tarki v Canada (Public Safety and Emergency Preparedness), 2010 FC 697 [Esmaeili‑Tarki]
- Douze v Canada (Citizenship and Immigration), 2010 FC 1337 [Douze]
- Tameh v Canada (Public Safety and Emergency Preparedness), 2017 FC 288
- Aghdam v Canada (Public Safety and Emergency Preparedness), 2011 FC 131
- Yassin v Canada (Public Safety and Emergency Preparedness), 2018 FC 423
- Thomas v Canada (Public Safety and Emergency Preparedness), 2020 FC 164.
Certified Tribunal Records
In Alinejad v. Canada (Citizenship and Immigration), 2024 FC 1994, Justice Go noted that IRCC provided two Certified Tribunal Records in which GCMS was different. Apparently some notes were not available to locally engaged staff due to access restrictions. The case is noteworthy because of this, and counsel should be persistent in confirming if CTRs are complete.
Other Reasons for Mandamus
As this internal e-mail from 2022 shows, there are many reasons why mandamus may be filed. Here, it appears that there was uncertainty over which visa office was responsible for certain files, leading to a two-year delay.
Costs
In Gichura v. Canada (Citizenship and Immigration), 2024 FC 1756, Madam Justice Sadrehashemi ordered costs in a mandamus application under the Lonely Canadian Program. Costs were granted because the Minister did not file any evidence regarding the complexity of processing this type of sponsorship application and that “there is also no explanation for the multiple, staggered unrelated requests for documents and why these requests were not made at the same time.”