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: The duty to process the application and make a decision is mandatory, not discretionary. IRCC cannot simply choose to ignore or indefinitely delay your application.
- No Alternative Remedies: Before filing a mandamus application, one must show that they have exhausted all other possible remedies, such as contacting IRCC directly or seeking assistance through other channels.
- Timeliness of the Application: A mandamus application must be filed at the right time and not too early.
Filing a mandamus application involves taking a case to the Federal Court of Canada. If the court grants the application, IRCC will be ordered to process the study permit application and issue a decision within a specified period. It’s important to note that the court does not dictate what the decision should be—only that a decision must be made.
A mandamus application is typically considered a last resort after all other options have been exhausted.
Jurisprudence
In Chen v. Canada (Citizenship and Immigration), 2023 FC 885, Madam Justice Aylen found that IRCC did not have a sufficient rationale for delays in processing a study permit application, but ruled that the Applicant did not demonstrate that she would incur significant prejudice. A significant factor in this was that the application was for a study permit. Madam Justice Aylen wrote:
However, notwithstanding these deficiencies in the Respondent’s evidence, I am not satisfied that the Applicant has demonstrated that he has suffered significant prejudice as a result of the delay. It must be kept in mind that what the Applicant seeks is a study permit. The delay has not removed any substantive right of the Applicant, but rather prevents a right to study in Canada (assuming he satisfies the required security clearance) from being vested for a period of time [see Vaziri, supra at para 50].
Notwithstanding the delay, the Applicant has been able to commence his PhD program remotely and has performed extremely well, having received numerous awards for his academic achievements. The Applicant asserts that pursuing his program remotely is difficult on his mental and physical health and is difficult due to the time difference between Vancouver and China and restrictions on internet use. He also asserts that the delay has caused him anxiety. However, I am not satisfied that this rises to the level of serious prejudice, particularly given the absence of any medical evidence in support of the assertion. Moreover, while the Applicant asserts that the delay is preventing him from progressing with his studies and potentially impacting his career path, it always remains open to him to pursue studies elsewhere and there is nothing in the evidence before me to suggest that only the program at the University of British Columbia can meet his educational objectives. Moreover, there is also no evidence that the Applicant will be unable to further defer the commencement of the in-person portion of his program. As for any potential impact that the delay may have on his career, I find that this assertion is purely speculative.
While the Applicant is understandably frustrated with the amount of time that it has taken thus far to process his study permit application, the Court must carefully review a request for a writ of mandamus to ensure that an applicant satisfies all of the necessary requirements (including significant prejudice). Otherwise, the effect of granting a writ of mandamus is to permit an applicant to “jump the queue” and have their application determined before that of others who have been patiently waiting their turn.
In Ran v. Canada (Citizenship and Immigration), 2023 FC 1447, the Federal Court granted mandamus for a Chinese national who had to defer her PhD at the University of Toronto.
On the issue of prejudice, the Court noted:
I am also satisfied that Ms. Ran has suffered a prejudice because of the extensive delay she has experienced (Vaziri at para 52).
In her affidavit, Ms. Ran describes in detail the hardship that she has endured and is still enduring because of the delay in the processing of her Application. First, she has been separated from her husband — whom she recently married — for the past nine (9) months. According to her affidavit, this has caused her psychological and emotional distress. Furthermore, the financial burdens accompanied by the uncertainty as to the timeline of her Application have made it difficult for her to maintain consistent, gainful employment in China and have led to financial struggles. Finally, not only has she lost a full year of study so far but, if Ms. Ran’s Application is not approved very soon, she may be precluded from undertaking her doctoral studies altogether, as her Ph.D. supervisor has indicated that he will not be able to continue requesting deferrals of her start date indefinitely.
In Zarei v. Canada (Citizenship and Immigration), 2024 FC 1513, Madam Justice Furlanetto affirmed that arguments of alleged significant prejudice must be support by evidence and cannot be accepted on judicial notice.
Beijing Visa Office Report
The following is a report by IRCC’s Beijing visa office describing the huge increase in the number of mandamus applications that they are receiving.
Beijing ReportPlease contact me at steven.meurrens@larlee.com if you have any questions.