STEP 1: Send a letter of demand to the Department of Justice (DOJ) and the visa office.
The goal is to seek the performance of the duty – namely, to render a decision on your immigration application. IRCC will assess the legal risk, and whether they should oppose the writ of mandamus. This will provide an opportunity for an immigration officer to examine your file before litigation.
If you have a strong case for a writ of mandamus and the letter of demand is well prepared, IRCC may decide to continue processing your case and render a decision to avoid further legal proceedings. In other words, after the letter of demand, IRCC may start processing your case again.
We invest time and effort in drafting a strong letter of demand. The letter of demand is a good opportunity to present your case for a writ of mandamus and reach an agreement.
When correctly prepared, the letter of demand may succeed. In this case, IRCC will continue processing your case, and you will not have to file an application for a writ of mandamus. We have reached agreements and settled cases before litigation begins. This will save you time and money.
STEP 2: File an application for leave and judicial review for a writ of mandamus (if the letter of demand was not successful) .
An application for leave and judicial review for a writ of mandamus is a formal legal proceeding that you would be taking against IRCC to request that they process your case and render a decision. Through the legal proceedings, IRCC will be represented by a lawyer at the Department of Justice (DOJ). In these proceedings, you will be the applicant and the DOJ will be respondent. The whole process can take up to 12 months after you make an application at the Federal Court.
Here is a short overview of the legal process:
-
Letter of demand: We work together to draft a letter to IRCC and DOJ to ask them to process your application and render a decision. In this letter, we clearly outline our intention of filing a writ of mandamus and demand that they process your application. We provide an overview of your personal situation and explain how you meet the legal test. We usually provide IRCC with 25 business days to continue the processing of your file before filing an application at the Federal Court.
-
Filing an application and perfecting the applicant’s record: We need to file an application for leave and judicial review at the Federal Court. This involves a formal process of filing a notice and serving the DOJ. Then, we prepare and file a legal factum which outlines your personal situation and legal arguments to obtain a writ of mandamus. We provide supporting documents to substantiate our arguments. After we prepare our factum, the DOJ will provide their own factum. They will argue the legal requirements for a writ of mandamus are not met, and they will argue that the Court should not issue a writ of mandamus.
-
Throughout the proceedings, we actively negotiate to settle. If IRCC agrees to process your case in a timely manner, we will discontinue the proceedings. If you continue to encounter unreasonable delays, another application can be filed at a later date.
-
-
Leave: An application for a writ of mandamus needs to obtain leave from the Federal Court to proceed. In other words, you will need to obtain permission from the Federal Court before you continue with the writ of mandamus. A judge will review your application for judicial review, including the factums and supporting documents. They will either grant or reject the application for leave. It usually takes around one to two months for a decision to be made on leave and they do not provide reasons for the decision. If leave is accepted, a court date will be scheduled in the following three to four months. If leave is rejected, the application ends. There are no other steps that can be taken. You cannot appeal a decision on leave.
-
Most applications fail at this stage. Around 20% of applications for leave are granted for immigration matters.[1] There are no statistics for mandamus applications.
-
-
Hearing: A judge will preside over a hearing. Both parties will have an opportunity to be heard, present legal arguments and discuss the evidence. In most cases, a hearing is scheduled for three hours.
-
Decision: It can take two to six months to have a decision. For complex cases, it may take much longer. The judge will provide reasons for the decision and make an order to either grant the writ of mandamus or dismiss the case. In most cases, you cannot appeal a decision from the Federal Court. You must certify a question of general importance to appeal a decision in immigration law, and this requirement is rarely met. Lastly, in most cases, you cannot seek legal cost for the proceedings. There must be special reasons warranting an award of cost.[2]