One of the legal remedies available when facing prolonged silence from Immigration, Refugees and Citizenship Canada (IRCC) is mandamus. This is a court order issued by the Federal Court that compels a government authority—like IRCC—to perform a legal duty it has failed or refused to carry out. In immigration cases, mandamus is commonly used when IRCC does not make a decision on an application (such as for citizenship, permanent residence, or a visa) within a reasonable timeframe, despite all required documents being submitted.
The Federal Court, in decisions such as Vaziri, has emphasized that mandamus is an equitable remedy intended to address unreasonable delays by compelling public bodies to act. It ensures that applicants are not left in limbo indefinitely due to inaction or procedural stagnation.
The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (F.C.A.), [1994] 1 F.C. 742 (C.A.), 1994 CanLII 47 (S.C.C.), [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 211 (CanLII), [2003] 4 F.C. 189 (T.D.), aff’d 2003 FCA 233 (CanLII), 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.
Let’s break down each part of the test in plain language so you understand what the Court is looking for — and how your situation fits.
(i) There must be a public legal duty to act:
IRCC has a public duty to process applications submitted under immigration and citizenship laws. Once an applicant has completed all required steps, the government is legally obligated to render a decision. This duty is not optional — it is set by law and policy.
(ii) The duty must be owed to the Applicants:
The duty to act must be specifically owed to the individual who is seeking the remedy. In immigration matters, this means the applicant has filed a complete and eligible application, and IRCC is the authority responsible for moving that file forward.
(iii) There must be a clear right to the performance of that duty:
Applicants must show that they are entitled to IRCC’s decision. This includes:
• (a) Satisfying all conditions precedent: The applicant must have submitted all required forms, documents, and fees, and completed all necessary steps like biometrics, tests, or interviews.
• (b) Demonstrating a refusal or delay, which includes:
• (I) A prior demand for performance: The applicant must have asked IRCC to act (e.g., via webforms, MP inquiry, or a demand letter).
• (II) A reasonable time to comply: The applicant must have waited a reasonable period after making that request. If IRCC refuses outright, this condition may be waived.
• (III) A refusal or unreasonable delay: If IRCC fails to act for a long time without valid explanation, the court may interpret that as an implied refusal.
(iv) No other adequate remedy is available to the Applicants:
Mandamus is a remedy of last resort. The applicant must show that they’ve exhausted all other reasonable avenues (e.g., contacting IRCC, submitting ATIPs, getting MP help), and there is no other effective legal option to resolve the issue.
(v) The Order sought must be of some practical value or effect:
The court will not issue a mandamus unless it can result in a meaningful outcome. In this case, it would compel IRCC to issue a decision — not a guarantee of approval, but at least to act on the pending application.
(vi) There is no equitable bar to the relief sought:
The applicant must approach the Court with “clean hands” — meaning they have acted honestly and reasonably. If the applicant caused delays, provided false information, or acted in bad faith, the Court may deny the request.
(vii) On a balance of convenience, mandamus should lie:
The Court weighs the fairness and consequences of granting the order. If the harm to the applicant from continued delay outweighs any inconvenience to IRCC, then mandamus is likely to be granted.