I have written about the remedy of mandamus before. In essence, the Federal Court has the power to compel Citizenship and Immigration, or Canada Border Services Agency to do something that they should be doing. More formally, mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays (Vaziri v. MCI 2006 FC 1159 (CanLII) at para 38).
Mandamus is a prerogative writ, a traditional remedy, which were all "primarily vehicles for ensuring that the administrative arms of government were kept under control" (Mullan, Administrative Law, 5th edition, p. 1093).
The writ of mandamus typically comes up in terms of forcing immigration to process already submitted applications for permanent residence. There is development in this area of law; a recent case of mine will be heard by the Federal Court of Appeal and will deal directly with the (thorny) issue of whether a private citizen/third party can compel the government to do something that it is authorized (or mandated) to do by law. This is a complex area of administrative law, as it deals with whether such decisions (or non-decisions) are "justiciable" and whether the recipient of discretionary power can define the ambit and scope of their own powers (almost offensive, in my opinion to the basic principles that have defined administrative law in this country since Roncarelli).
In my opinion, the remedy of mandamus is far more flexible than the position usually articulated by the government lawyers. That's (again) my opinion. If you are contemplating mandamus, you will need to ensure that you meet the necessary preconditions of mandamus (see Vaziri or Conille).
Moreover, s.18 of the Federal Court Act ensures that the Court will not be curtailed in developing new grounds of review. Finally, mandamus is frankly, another tool in the arsenal for accountability and oversight. These days there are many public bodies (like CSIS) that have a paucity of oversight. The remedy of mandamus means that there is at least a modicum, a veneer, of oversight by way of the Federal Court on federal tribunals and decision makers.
Sunlight is always the best disinfectant.
Most of the time, the applicant is the person being directly affected by recalcitrance, by delay (but see my comments above, Zaghbib dealt with the efforts of a victim of marriage fraud -- the sponsor -- to force the CBSA to take action and carry out their mandate under the IRPA).
My next hearing before the Federal Court will deal with the failure of CBSA to finalize a years long investigation into my client, a permanent resident of Canada. I thought it might be helpful for me to set down my thoughts on this issue for individuals being ground under the heel of CIC or CBSA truculence and perhaps for other practitioners in this area.
It is essential that you identify the correct respondent (there are a number of areas of IRPA where there is seeming overlap between CIC and CBSA). It's not a huge deal, it's usually not a problem to get the court to amend the parties in such applications. It is also important that you understand what it is that you want the court to do. Obviously you should be asking the court for a remedy that it can grant. Don't ask for something that is outside their purview.
As an aside, if you've been called in for an unexpected interview with immigration, you may want to take a look at our video on such requests (there are individuals that are compellable at such interviews and others that are not. Do not assume that you are the former).
In this case, CBSA suspects that my client is inadmissible for misrepresentation. They have not however, finalized that investigation which, necessarily, results in either the writing and referral of a section 44 report setting out the allegations of inadmissibility or the termination of a seemingly interminable investigation. What I'm asking for is for CBSA to simply make a logical, binary decision. Either proceed with preparing the report, or admit that there is no (or insufficient) evidence and put an end to this.
There is real practical value to any of these two outcomes.
If the report is written, then my client will have an opportunity to challenge it before the Immigration Division. This means that an independent decision maker will take a look at whether the Minister has met the onus (that he bears). There is nothing in the file (always always always do an Access to Information Request) to substantiate potential allegations of inadmissibility. In all likelihood, the Immigration Division will set aside the removal order and my client can go on with her life. I don't see this happening, but if the Immigration Division finds the report well founded then my client still has an appeal against the resulting removal order to the Immigration Appeal Division, which can consider other grounds and allow the appeal (the "Ribic and Chieu" factors).
If the investigation is ended (as it should be) then again, my client will be able to get on with her life. As it stands, she is in somewhat of a legal limbo. A review of the ATI response shows that her citizenship application, submitted for some time, is being held in abeyance as a result of this investigation (did I mention how important an ATI request is to this type of remedy?).
So, what do you have to do to compel government action? I suggest the first few steps include the preliminary identification of the correct party, request and review of an Access to Information Request, determining whether the delay in question is "inordinate" (review the case law, and understand the context within which the application and decision take place within IRPA), and then requesting the Respondent to make a decision (the "demand letter" (somewhat of a condition precedent to a mandamus application, lest the court refuse relief based on prematurity). Failing an adequate response (silence is usually what I get back to my demand letters) you can file an application for leave and judicial review and for mandamus.
After the application is filed, you will receive a Rule 9 response. In this case, the Rule 9 response is short on detail, but advises when CBSA received a referral for investigation, that CIC has "collected evidence" (no detail as to what that evidence is) and that the file has been assigned to an officer (and the date of that assignment) but that the officer is unfortunately burdened with other responsibilities and thus has not been able to complete the investigation.
Based on the above reasoning (no intimation as to when the investigation will be complete, if ever) the client could be under investigation for an indeterminate amount of time. This is an abuse of discretion and inappropriate in a rule of law society like Canada.
You will need to file your record 30 days after receipt of the Rule 9 request. The Applicant's record of course, includes an affidavit from your client, exhibits and your argument along with relevant case law. The Access to Information Request that you made well before any of this will likely be attached as an Exhibit. Another exhibit will be correspondence (the "demand letter or letters") sent by your counsel. The affidavit should outline the necessary facts to support the argument (why do people write the affidavit first and then the argument? This is lazy thinking and indiscriminate action - h/t @tferriss). Your argument and the legal test will necessarily inform the evidence that you need to provide. It may well contain your (multiple) efforts to communicate (in a variety of forms, from fax, couriered written correspondence, telephone messages) with the Respondent's officers. If they do not respond, so much the better. Say so. It will simply be sauce for the goose.
Your affidavit should (obviously) not contain any argument. Length is no indication of quality. If you know the legal test you need to meet and have written the argument first, then drafting the affidavit will be simple and will not contain the superfluous verbiage that most affidavits prepared by most lawyers contain.
It's tough to fit a square peg into a round hole. Mandamus may simply not be available for many situations. If you do have a round peg for your round hole, mandamus may be a perfect remedy. Once the Record is filed the DoJ will have 30 days to respond. Our office almost always files a Reply to their argument (due 10 days after receipt of their argument). The Federal Court then determines whether leave will be granted or not. If leave is granted, the hearing will be set down in a couple of months. It's entirely possible that the filing or perfection of leave may result in some action on the file. It's also possible that the Court may not grant leave and you may have to take another crack at mandamus some time down the road (sometimes mandamus is like breaking up with a girlfriend or tipping over a vending machine -- it may require more than one attempt).
Oral argument should not be wasted on re-reading your argument. A good read is Scalia's Making Your Case: The Art of Persuading Judges.
It's key to know the facts and now where everything is so you don't look like a neophyte (or unprepared) flipping through your brief, or theirs, or the Certified Tribunal Record (this sounds obvious, I know).
This remedy is fact specific. Know the law. Review every page of the Record. Listen to the Justice and answer his or her questions. Don't say something just for the sake of saying something. If you don't have anything to add to your argument, sit down. Don't waste the Court's time.
Be prepared to deal with the DoJ specious reliance on Zaghbib as support for the absurd proposition that government officer's can take as long as they want, act as they wish, without regard to any authority, that they are free to drag out an investigation/application for as long as they wish. That they can dangle the Sword of Damocles over your head until they see fit (perhaps until intangible and oft tenuous memory fades, or corroborative witnesses move, disappear or die), or hold back your permanent residence status irrespective of the toll it takes on your life, and on your marriage.
Good luck!
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