Mandamus in immigration matters

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Since last year, the number of mandamus applications before the Federal Court has increased significantly, contributing to a substantial backlog. 

It’s been reported that many individuals have been misled by unlicensed immigration agencies into either filing mandamus applications on their own or paying a few hundred dollars to have agents draft legal documents on their behalf for self-represented filings. 

As set out in Rule 119 of the Federal Courts Rules, as well as the guidance provided on the Court’s website, a party appearing before the Court must either represent themselves or be represented by a lawyer. An immigration consultant, or any other individual who is not a lawyer, may not represent a party in a proceeding or provide legal advice in relation to a judicial process. The exception is when the Court, upon motion brought by the applicant and in the interests of justice, grants a non-lawyer permission to provide representation. 

In Canada, the threshold for an order of mandamus is high, requiring eight conditions to be satisfied. The test for granting mandamus was established in 1993 in Apotex v Canada (Attorney General).

Preventing hardship and procedural unfairness

In the past, several judicial decisions emphasized that applicants seeking mandamus relief for administrative delay were often required to demonstrate significant prejudice. Otherwise, mandamus relief was generally difficult to obtain.

Recent cases, however, suggest a gradual relaxation of this requirement and a more flexible approach to the role of prejudice in applications. For example, in Majidi v Canada, the judge said that while he wasn’t suggesting that prejudice be included as an integral component of the balance of convenience assessment, “it may be a relevant factor in some cases.”

The Court also held that, “It is clear from the above that mandamus can be an important tool in preventing abuses of process from occurring, together with the significant prejudice that necessarily accompanies such abuses. Considered in this light, it does not make sense to incorporate the ‘significant prejudice’ criterion from the abuse of process context into the mandamus context. To do so would, perversely, require a level of hardship that mandamus is specifically intended to prevent.”

The jurisprudence confirms that mandamus is intended to prevent the type of hardship and procedural unfairness caused by prolonged administrative delay. Therefore, requiring applicants to first demonstrate a heightened level of hardship before obtaining relief undermines its purpose. 

This principle is particularly important in the context of citizenship applications, where prejudice may be inherently more difficult to establish than in other immigration matters such as study permits, work permits, or permanent residence applications. Once an individual has obtained permanent resident status, the distinction between permanent residency and citizenship is often more limited, with citizenship granting additional rights, such as the right to vote. 

As a result, delays in citizenship processing may not always produce immediate or obvious impacts on an applicant’s employment or daily life, unless, for example, a specific employment opportunity requires Canadian citizenship. The absence of severe or easily quantifiable prejudice should not preclude mandamus relief where the delay is otherwise unreasonable and other legal requirements have been satisfied.

I’m not suggesting that prejudice has become irrelevant in mandamus proceedings. On the contrary, courts continue to place considerable weight on evidence that demonstrates the delay’s impact on the applicant. And a well-supported evidentiary record of prejudice will often substantially strengthen an application for mandamus relief. 

Evidence must back claims of significant prejudice 

In Liu v. The Minister of Citizenship and Immigration, the Court reaffirmed that although prejudice is not a strict legal prerequisite, evidence of it remains an important consideration. It noted that where an applicant “can point to some prejudice, the balance of convenience will typically tilt in favour of the mandamus relief sought.” 

Against this backdrop, an important practical question arises: how should prejudice be properly demonstrated? 

In Ur Rehman v. Canada, the Court held that, while there are hardships associated with a pending application that are evident from the record, including waiting, they do not entitle the applicant to a writ of mandamus. Allegations of significant prejudice must be supported by evidence. For example, in this case, there was no evidence that the applicant had been separated from his wife during the processing of his application or that the delay had impacted his business or any specific “important decisions about his life.” The applicant’s evidence was insufficient to demonstrate significant prejudice arising from the delay.

If you claim a delay has caused you significant prejudice, you have to provide concrete evidence to support it. General statements that you’re suffering or that it has affected your life aren’t enough. Courts don’t accept speculative or hypothetical prejudice. 

It’s also insufficient to merely assert that you feel anxious, have been waiting for an extended period of time, or are experiencing stress or inconvenience. The alleged prejudice, whether it’s prolonged separation from a spouse, inability to proceed with family planning, inability to work, financial losses, or issues involving children or parents, should be supported by corroborating evidence and articulated in a clear, concrete, and specific manner. With this, a court is more likely to conclude the prejudice is genuine and substantial. 

At the same time, certain forms of prejudice, including anxiety, emotional distress, stress, or insomnia arising from prolonged uncertainty, can be difficult to substantiate through medical evidence, particularly if an applicant hasn’t sought or received medical treatment during the waiting period. It may also be difficult to establish a direct causal connection between symptoms and the delay. 

That’s why these factors should not be advanced in isolation, but rather with objective evidence demonstrating the delay’s impact. Presented together, this may help strengthen the prejudice argument in a mandamus application.

Although the Federal Court seems to have moved away from requiring applicants to demonstrate “significant prejudice” in the strict abuse-of-process sense, courts continue to place substantial weight on evidence showing how the delay has affected the applicant.

Lawyers have a responsibility to assess the merits of a case properly and should not encourage applicants to pursue meritless litigation if their case does not meet the basic legal threshold. Judicial resources are limited and should be preserved for applicants whose circumstances genuinely warrant the Court’s intervention.