Breaking a Two-Year Standstill: A Mandamus Case
How a stalled permanent residence application was resolved through Federal Court
This case study traces the chronology and details of a lengthy immigration process that was ultimately resolved with the involvement of the Federal Court.
The PR Application
Sarah received a provincial nomination and submitted her permanent residence application through the Provincial Nominee Program in January 2022. At the time, the average processing time for such applications was about six months.
Six months later, in July, all Sarah had received was an acknowledgement of receipt (AOR) – a letter confirming that the application had been accepted for processing. By the fall, she had completed the medical examination and biometrics, followed by a request for additional information and documents. The response was submitted promptly and in full.
Then came a long silence.
Sarah tried to find out the reason for the delay. She requested GCMS notes on multiple occasions and contacted the visa office through the IRCC web form – none of it produced results. The replies were boilerplate and uninformative, and the GCMS notes contained nothing that shed any light on the cause of the holdup.
The Court Application
In May 2024, Sarah decided to initiate a mandamus process. The formal demand to complete the review within 30 days went unanswered, and in July the court proceedings were launched.
The mere fact that an application has been pending longer than expected – or longer than published average processing times – is not sufficient to obtain a court order. Established case law sets out a number of criteria that must be met:
- There must be a legal duty to process the application
- That duty must exist with respect to the applicant specifically
- The applicant must have a right to demand performance of that duty
- No other adequate legal remedy must be available
- A court order must have real practical benefit
- The applicant's own conduct must not disentitle them from relief
- The balance of convenience must favour the applicant
The memorandum filed with the court addressed each of these criteria in detail, supported by legal precedents and the facts of the case.
The Visa Office's Response
As part of the court procedure, the respondent (IRCC) had the opportunity to reply to the application. Their memorandum arrived in August 2024.
Alongside the usual arguments – that IRCC is not obligated to process applications within specific timeframes, that the delay in this case was not critical, and that courts have declined to issue a writ of mandamus in cases involving even longer delays – two more interesting arguments emerged.
The Security Checks Argument
The court procedure gives the applicant one more opportunity – to respond to the respondent's memorandum. We used it.
The government's first substantive argument was that the application was at the security checks stage, and such checks can take a long time.
In other words, the result of the check could be negative, rendering the applicant inadmissible. These checks cannot be shortened or bypassed, the government argued, because the question at stake – whether the applicant may be admitted to Canada – is critically important.
A deep dive into case law yielded the following counter-argument, supported by precedent:
Under Canadian immigration law, the principle of inadmissibility applies not only to foreign nationals but also to permanent residents. Even if the PR application were approved and the applicant received permanent resident status, this would not prevent the authorities from completing their security checks. If those checks were to result in an inadmissibility finding, PR status would offer no immunity from removal. Security checks, therefore, are not a valid justification for the delay.
The Timeline Correction
The second argument became possible because the respondent discovered an error in our court application. We had stated that the application had been under review for over 30 months, but the visa office correctly pointed out that this was inaccurate – the application had been accepted for processing in July 2022, not January, since that was the date on the acknowledgement letter.
This was indeed correct, and the error had to be conceded. The GCMS file contains two dates – Application received and Application created – and these dates can differ, as they did in this case.
But one of a lawyer's superpowers is the ability to turn a setback into an advantage. In its memorandum, IRCC essentially told the court: "The applicant can't even get the dates right. They claim the application was filed in January, when it actually entered processing in July. So it's not 30 months – it's only 25!"
How to turn this correction in the client's favour?
In the reply memorandum, we acknowledged the error and then explained the arithmetic: yes, the application entered processing in July. According to the GCMS notes, the last recorded activity on the file was in November of that same year. Under the original timeline in the court application, this meant ten months of work followed by twenty months of inactivity. But thanks to the diligent IRCC lawyer's correction, the picture was now even worse: twenty months of inactivity after only three months of work. Is that what anyone would call a "reasonable delay"?
Resolution
After the exchange of memoranda, nothing dramatic happened. In September 2024, the visa office completed its review of the immigration application and sent Sarah a passport request – without waiting for the court to intervene.
Timeline
- January 2022 – PR application submitted
- July 2022 – application accepted for processing
- September 2022 – medical examination and biometrics completed
- October 2022 – first GCMS request; additional documents requested
- November 2022 – documents provided; last recorded activity on file
- February – December 2023 – multiple GCMS requests, no progress
- July 2023 – March 2024 – status inquiries via IRCC web form
- June 2024 – formal demand to process within 30 days
- July 2024 – mandamus proceedings initiated
- August 2024 – respondent's memorandum and applicant's reply
- September 2024 – passport request received; case resolved
Lawpoint Immigration has extensive experience with mandamus proceedings and stalled immigration applications. If your application has been pending far beyond any reasonable timeline, we can assess your situation and guide you through the process.