Canadian Immigration Application Delays: Is a Power of Attorney Petition the Answer?
In an ideal world, everyone who applies to immigrate to Canada would have a flawless case, but in the real world, we often encounter unforeseen issues along the way. Mistakes such as missing documents or computer errors can cause delays that extend the processing of your application well beyond the posted timeframe, which can be an exhausting and emotionally draining experience for those waiting. If you're experiencing difficulties with your immigration application, there is a judicial remedy that allows you to actively expedite your application instead of just waiting. It's called a petition for mandamus in Korean and a writ of mandamus in the original English. It's a request for a court to order a government agency, including immigration, to make a decision within a specified period of time. However, this legal remedy doesn't work in all cases of delay, as it must be sufficiently proven that the delay was unreasonable and that you suffered harm. In fact, two recent Canadian federal court cases involved the same request for a delay in processing an immigration application and received different outcomes.
In one, where the court ordered a remedy, the applicant and his family's application for permanent residency, filed in 2016, had not yet been processed. The family submitted their application through Express Entry and was nominated by the provincial government under the PNP in 2017. They updated their profile with Citizenship and Immigration Canada shortly thereafter to continue their application, but were never notified of the outcome of the processing, and had been asking Citizenship and Immigration Canada for expedited processing on several occasions since 2018. When they did not receive a response or outcome, they sought legal relief, and the court found that the delay of over six years without any notice was unreasonable. The court found that the family's power of attorney petition was sufficient, and if the processing was going to be delayed for an extended period of time, USCIS should have shown good cause. Therefore, the court required USCIS to complete the processing of the family's application within 90 days of its decision and ordered them to pay $1,000 as compensation for the delay without good cause or explanation.
There was one other similar case, but this time the outcome was different. A study abroad applicant filed a petition for a writ of mandate, but it was denied. The applicant in this case received his bachelor's and master's degrees from a Chinese university and was accepted into a doctoral program at the University of British Columbia. In 2021, he submitted an application for a study permit. However, a delay in the decision prompted him to file a petition for a writ of mandate with the court. The court's decision was that the applicant could not prove that he suffered serious hardship due to the delay because he was able to start the program remotely from China. Furthermore, he did not meet the requirements for a finding that he was deprived of the opportunity to study, so the writ of mandate in question could not be accepted.
What this line of cases suggests is that a petition for a writ of mandamus is an extraordinary remedy that is available only if certain conditions are met, including a showing of prejudice from administrative delay and that the circumstances of the delay are unreasonable. As exemplified by case law, the conditions and requirements for a writ of mandamus petition to be valid can be difficult to achieve, and the courts will only step in where there is serious inconvenience to the applicant and no other adequate remedy is available. Therefore, if your immigration application is seriously delayed, a writ of mandamus may be one way to resolve it, but it should be viewed as a last resort that is not generally available.
There are a number of steps you can take before petitioning for a writ of mandamus when your immigration case is delayed. If you are experiencing a backlog in your processing, we recommend trying these first. The first thing to do is to make sure that your documents, programs, etc. are up to date and current. The estimated wait times for immigration processing are listed on the Citizenship and Immigration Canada website and can be viewed individually, so you should check your status first. You can also ask questions online on the Citizenship and Immigration Canada website or call customer service. If you feel that the response is inadequate or lacking, you can also ask your local Member of Parliament to provide a status update. You can also request Access to Information and Privacy (ATIP) online from within the webpage, which will give you more information, including the current status of your documents.
If all of these efforts do not result in a clear and unexplained delay in processing your immigration case, you can hire an attorney to submit a formal request through USCIS's web form. You can include an explanation of how the delay has seriously affected you and what you've been trying to do to get your case processed. If that doesn't work, the next step is to petition for a writ of mandate.
USCIS is currently trying to make immigration processing faster and more accurate, and through computerization, they are trying to communicate processing times more accurately. However, there are still times when it takes unreasonably longer than the expected processing time, which may be a normal processing delay, but if it's more than that, it's a good idea to try some of the steps mentioned. If you've exhausted all of them and nothing is working, that's when you might want to consider a petition for writ of mandamus.
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