Canadian Federal court orders IRCC to issue decision on study permit

The Federal court has granted a writ of mandamus for a study permit application. The applicant submitted their study permit application on July 13th 2022 but the application was stuck in a background check for more than 15 months.

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A writ of mandamus is a judicial remedy that asks the courts to order Immigration, Refugees and Citizenship Canada (IRCC) to issue a decision within a specified period of time. In immigration law, it is used when an applicant has experienced extensive delays in an application.

A mandamus is an exceptional remedy that is only used as a last resort. It is highly dependent on the facts of each case, and the court must find that there has been an unreasonable delay in an application and there is no satisfactory justification for that delay.

In this case, the applicant intended to pursue a PhD program in mechanical and industrial engineering at the University of Toronto, which she anticipated to start in the fall of 2022. However, IRCC failed to make a decision on her application for so long that she had to make multiple deferrals on her start date for the program.

In addition, the applicant’s husband had arrived in Canada as a student, meaning that the two had been separated for over nine months, which the applicant argued was causing a strain on her emotionally and psychologically. Further, the uncertainty surrounding her application negatively affected her ability to find work and provide for herself.

When the applicant inquired about the delay, IRCC sent a reply stating that her application was undergoing standard background checks and that the processing time would be extended. Due to the numerous delays, she applied for leave and judicial review seeking a writ of mandamus.

The court held that the delay experienced by the applicant far exceeded the normal processing time of study permit applications, “more than seven times the usual average of nine months”. In addition, there was nothing in the application that was complex or would require extensive delays. The applicant was not responsible for the delay nor was there satisfactory justification for the delay on the part of IRCC.

The court determined that the delay was unreasonable and ordered IRCC to finish processing within 30 days.

What to do if you are facing delays in your application

If you are experiencing delays in the processing of your application, there are many steps you can take before resorting to a writ of mandamus.

You should first check your application status on IRCC’s website, which provides a tool that accurately shows the expected wait times for your type of application. You should ensure that all documentation and required applications are up to date to avoid unnecessary delays.

You can then file a webform inquiry or call the IRCC customer center to inquire about your application and request a substantive response or reasoning for the delay in your application. If the inquiries to IRCC go unanswered or are unsatisfactory, you may be able to ask a local member of Parliament to file a status update request.

Another option is to 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, you may also request Computer Assisted Immigration Professing System (CAIPS) notes or their Field Operations Support System (FOSS) notes.

The notes will provide information and details about the IRCC officer’s concerns about your application. It also provides you with the opportunity to address these issues or concerns and submit any other missing documentation.

Finally, you may consider hiring a lawyer to submit a formal request letter via IRCC’s webform. This letter will discuss how the delays in your application have seriously impacted you and the efforts you have already taken to follow up with IRCC.

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