In two previous posts I touched upon mandamus orders, and have gotten e-mails since inquiring as to whether or not their case warranted the filing of an Application for a Mandamus Order.
The purpose of today’s post is to make it clear that mandamus orders are not particularly easy to get, and that they generally are used only as a matter of last resort.
For those unfamiliar with the concept of mandamus, 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.
In the Canadian immigration context, the Federal Court decision in Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, is probably the most cited case for setting forth the test for when an order mandamus will be given. There, Justice Snider noted that:
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. The most recent one that I filed was in December, 2010. Prior to filing the Application we made three written requests for the performance of what we considered to be the legal duty of the Canada Border Services Agency to act immediately. We also filed a lengthy memorandum of law articulating what the legal duty was, why it was owed, and that the balance of convenience favored our client. While the Canada Border Services Agency ultimately performed that duty after being recommended to do so by their council prior to us going all the way to a full hearing, I cannot say that I am 100% sure that we would have won given how difficult it is to meet all 8 factors.
For example, 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. 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.
(There are of course exceptions to the above which are beyond the scope of this post.)
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.”
Having said all that, 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.
