Mandamus Orders

Meurrens LawJudicial Reviews

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. The Federal Court’s decision in Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, is one of the most cited case in the immigration context for setting forth the test for when a mandamus order will be given.  There, Justice Snider stated: 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)  … Read More

What Happens After a Judicial Review

Meurrens LawJudicial Reviews

The Federal Court of Canada (the “Federal Court“) has the jurisdiction to review immigration decisions, including those of Immigration, Refugees and Citizenship Canada (“IRCC“) and the Canada Border Services Agency (“CBSA“).  The Federal Court will not order a specific result.  Rather, the Federal Court will order that the application be sent back for re-determination by a different officer. Many people often wonder how that process works. Jurisprudence In Canada (Commissioner of Competition) v. Superior Propane Inc. (C.A.), 2003 FCA 53, the Federal Court of Appeal stated: The principle of stare decisis is, of course, well known to lawyers and judges. Lower courts must follow the law as interpreted by a higher co-ordinate court. They cannot refuse to follow it: Canada Temperance Act (The), Re, 1939 CanLII 58 (ON CA), [1939] O.R. 570 (C.A.), at page 581, affd 1946 CanLII 351 (UK JCPC), [1946] 2 D.L.R. 1 (P.C.); Woods v. The King, 1951 CanLII 36 (SCC), [1951] S.C.R. 504, at page 515. This principle applies equally to tribunals having to follow the directions of a higher court as in this case. On redetermination, the duty of a tribunal is to follow the directions of the reviewing court. In Canada (Citizenship and … Read More

Arguing Incompetence of Counsel in an Appeal

Meurrens LawJudicial Reviews

Many lawyers when they meet with clients often review rejected applications and/or appeals where it is obvious that the individual’s previous representative was incompetent. The examples of incompetence range from missed deadlines to ignorance of the law.  Some specific examples include: former counsel being told by an Immigration Appeal Division member to “sit down” because they were incompetent; an immigration consultant not knowing the difference between a “conviction” and a “dismissal”; an immigration consultant stating that the “prevailing wage = the wage paid to Canadians at the employer’s company”; and a lawyer filing late because “deadlines are policy, not statute.” While the previous representative’s incompetence may serve as a ground for relief in a judicial review,  cases based on incompetence and/or negligence of previous counsel are exceptionally difficult.  The Federal Court’s March 7, 2014, Procedural Protocol on arguing incompetence of counsel only make these cases more challenging.    The Law on Incompetence of Counsel As the Supreme Court of Canada stated in R v. GDB for incompetence/negligence of previous counsel/representative to count as a ground for judicial review, it must be established that (1) previous counsel’s acts or omissions constituted incompetence and (2) that a miscarriage of justice resulted from the incompetence. The Federal … Read More

Asking the Embassy to Re-Consider an Application

Meurrens LawJudicial Reviews, Work Permits

Once a decision has been rendered in relation to an application for a humanitarian and compassionate exemption, is the ability of the decision-maker to reopen or reconsider the application on the basis of further evidence provided by an applicant limited by the doctrine of functus officio?

Mandamus for Study Permits

Steven MeurrensJudicial Reviews, Study Permits

Are you an international student facing delays in your Canadian study permit application? Delays can be frustrating and disruptive, especially when they threaten your academic plans. This post will explore how a mandamus application can help overcome these obstacles. Overview of Mandamus  A mandamus application is a legal action that compels a government authority or public official to perform a duty they are legally required to fulfill. In the context of study permits, it’s a way for students to ask the Federal Court of Canada to order Immigration, Refugees, and Citizenship Canada (“IRCC“) to process their application when faced with unreasonable delays. To successfully file a mandamus application for a study permit, one must meet certain legal requirements. Understanding these criteria is key to determining whether this legal remedy is appropriate. Right to a Decision: You must prove that they have a clear right to a decision on their study permit application. This means IRCC is obligated to make a decision, although it doesn’t guarantee that the decision will be an approved study permit. Unreasonable Delay: One must demonstrate that the delay in processing the  application is unreasonable, meaning it far exceeds standard processing times without a valid reason. Non-Discretionary Duty: … Read More

Judicial Review of Public Policies

Steven MeurrensJudicial Reviews, Skilled Immigration (Express Entry, CEC, FSWC, Etc.)

Section 25.2(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 provides that: Public policy considerations 25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations. Overview An Immigration, Refugees, and Citizenship Canada (“IRCC“) public policy is a temporary, discretionary measure enacted by IRCC to address specific immigration-related issues or situations that aren’t fully covered by existing Canadian immigration laws. These public policies offer flexibility in processing applications, support targeted groups of individuals, and respond to urgent or emerging needs. These IRCC public policies are usually time-limited and can be updated or revoked as circumstances evolve. Eligibility criteria, application processes, and other details are typically available on the official IRCC website. A list of public policies can be found here. Jurisprudence In Rohani v. Canada (Citizenship and Immigration), 2024 FC 1037 the Applicant argued that because previous Federal Court decisions referred … Read More

The “Innocent Mistake” Defence to Misrepresentation

Meurrens LawJudicial Reviews

Canadian immigration law provides that a person who makes an application must answer truthfully all questions put to them for the purpose of the examination.  One of the most difficult issues to resolve when an individual is immigrating to Canada are allegations from the Government of Canada about misrepresentation. Section 40(1)(a) of Canada’s Immigration and Refugee Protection Act states provides that a permanent resident or a foreign national is inadmissible to Canada for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canadian immigration law. Every visa applicant has a duty of candour to provide complete, honest and truthful information when applying for entry to Canada.  Any misrepresentation, whether direct or indirect, that either induces, or could induce, an error by a visa officer in the performance of his or her duties, can result in a person being barred from Canada for five years. Intention A significant issue that often arises is whether or not a misrepresentation has to be intentional.  The jurisprudence consistently provides that in order for a finding of misrepresentation to be made an applicant does not have to intend to … Read More

Extrinsic Evidence

Meurrens LawJudicial Reviews

Where immigration officers have extrinsic evidence particular to an applicant, and that applicant is unaware that the immigration officer has that evidence, then procedural fairness requires that immigration officers disclose this evidence to the applicant.

When the Court Will Award Costs

Meurrens LawJudicial Reviews

In this post, which will be updated frequently, I will be looking at scenarios where the Federal Court ordered costs. I’m hoping that this post can become a useful reference for Federal Court practitioners.

De Novo Jurisdiction and the IAD

Meurrens LawJudicial Reviews

“Does the Immigration Appeal Division have an obligation to determine the genuineness of a marriage on a de novo appeal from a removal order on the basis of a misrepresentation, when the genuineness of the marriage was the misrepresentation alleged in the subsection 44(1) report and was relevant to a determination by the IAD of whether the person concerned made the misrepresentation in issue before it?” This was the question before the Federal Court of Appeal in Canada (Citizenship and Immigration) v. Peirovdinnabi, 2010 FCA 267.  In answering it, the Court reflected on the nature of a de novo hearing. The matter pertained to an individual whose application for permanent residence on humanitarian and compassionate grounds was granted, in part because of the applicant’s marriage at the time.  The application was approved despite the fact that the applicant’s ex-spouse approached immigration authorities advising them that the marriage was a sham entered into solely for immigration purposes. Shortly thereafter, the applicant applied to sponsor a spouse.  This got the attention of immigration authorities, who made a s. 44(1) report to the effect that the applicant was inadmissible for having made a misrepresentation in his H&C application, and that the marriage was … Read More