When applying to work, study or immigrate to Canada, a foreign national must submit their application to Immigration, Refugees and Citizenship Canada (IRCC). IRCC has service standards that provide the usual processing times for applications. However, there can be delays to these processing standards, causing the processing time of the application to be much longer than IRCC’s service standard.
Canada’s immigration system is experiencing a backlog problem. Backlogs have been due to the COVID-19 pandemic, staffing shortages, high demand, and aging technology. Personal application delays can be due to missing documentation, or requirements like background checks that take extra time.
What are your options?
There are a few options if you are experiencing delays in your application.
The first thing an applicant should do is check their application status online through IRCCs website. It provides a processing times tool that is meant to accurately show the expected wait times. It is important to ensure that all documentation is complete and up to date, in order to avoid any unnecessary delays.
Once this is done, you may file a webform inquiry or call the IRCC customer center to see if they can provide you with a substantive response as to the reason for the delay in your application. If the inquiries to IRCC go unanswered or are unsatisfactory, you can try asking a local member of Parliament to file a status update request.
For applications submitted after 2010, you can also file an ATIP, or an Access to Information and Privacy Application. An ATIP is a request for an applicant’s Global Case Management System (GCMS) notes. Along with the GCMS notes, they can request their Computer Assisted Immigration Processing System (CAIPS) notes or their Field Operations Support System (FOSS) notes.
These notes will give you an idea about if anything is wrong in your application, or if the IRCC officer has noted concerns or doubts about your application. It also provides an opportunity to submit additional evidence addressing those doubts.
If necessary, you can also hire a lawyer to submit a formal request letter via the IRCC webform. This letter will emphasize that the processing time has exceeded the average processing time for the sort of application you are applying for, the efforts you have made to follow up with IRCC, and how the delay has negatively impacted you.
Applying for an Order of Mandamus
If the average processing time has passed and the other efforts and options described above are unsuccessful, then the last resort is to apply for an Order of Mandamus. The Federal Court will hear requests for these orders, which pressures IRCC to decide about the application.
It is recommended that you hire a lawyer to help you through this process. The threshold for an Order of Mandamus is high. Obtaining an Order will hinge on whether the applicant has exceeded the average processing time and is subject to unreasonable delays.
There are eight conditions that should be satisfied to warrant an Order:
- There must be a public legal duty to act (to process the application)
- The duty must be owed to the applicant
- There is a clear right to the performance of that duty, in particular that the applicant has satisfied all conditions giving rise to the duty and there was unreasonable delay
- No other adequate remedy is available to the applicant
- The order sought will be of some practical value or effect
- The Court finds no equitable bar to the relief sought
- On a balance of convenience, an order of mandamus should be issued
One example of a balance of convenience that is in favour of an applicant is that the applicant is unable to renew their driver’s license or health card unless they have a valid work permit or study permit.
Waiting to hear about your application can be a stressful process that takes time and money. It is important to stay informed about the status of your application, to be proactive in updating your file and correcting any errors and being patient.
