Summary: Raj Sharma, a lawyer, explains that mandamus (an application to the federal court to compel IRCC to do something) is more of an art than a science. He says that the trigger for mandamus should be pulled when there is less discretion involved in the underlying application. He does not worry too much about stated processing times and looks at the type of the application, the needs of the client, and the circumstances. He suggests that mandamus can be a very helpful tool, but it may have to be done multiple times and it depends on the particular case. He also says that sometimes, it is better to wait a few months before filing mandamus.
Steven Meurrens: When should someone file mandamus? In speaking with lawyers, I've heard everything from, not when people should, but what people's practice seems to be. If the processing time has exceeded stated processing by two x, if it's even a day over or even any time, what's the downside? Oh, and for those, a mandamus is an application to the federal court to compel IRCC to do something. In the visa context, it's usually to conclude processing.
Raj Sharma: My philosophy is that mandamus and deciding mandamus and when to file or when to initiate a trigger is more of an art than a science. So I'll give you my little algorithm. My algorithm is that the less discretion plays a role in the underlying application, the more likely it is that you should pull the trigger. So on that spectrum, when do you pull the trigger? Well, on a citizenship application, I will pull that trigger route mandamus quite quickly. On a PR application where everything's met, it's inside Canada, people need to move on with their lives. There's definite benefits to getting that PR sooner rather than later. I will pull that man name as trigger quickly.
You pull a mandamus on a visitor visa application or an extension, you are asking for a refusal because that officer's going to be like, "You want a decision? No problem. Here's a no and deal with the exogenous after the fact, expos facto federal court system." So it depends. On a visitor visa or visitor extension or work permit inside Canada, I'm a lot nicer in my demand letter. You have to understand the nature of the application before you. I don't know, I've been doing mandamus for a long time. I've taken a mandamus matter to the federal court of appeal. It's a very helpful tool on the right application at the right time, but it's certainly not some sort of blanket cure all.
Deanna: That's a very interesting perspective.
Steven Meurrens: So in terms of this pulling the trigger, would you ever pull it if the application hadn't exceeded stated processing times or can you think of scenarios where you would? This seems to be something that at least I'm hearing about.
Raj Sharma: Don't worry so much about stated processing times. This is my perspective on this. None of my mandamus applications have really turned on whatever the nonsense website says is... What is the process time? When they submitted it? Is it historical? Is it current? No, no, no.
Deanna: When it's being sent back for redetermination.
Raj Sharma: It has to be in the circumstances [inaudible 00:40:04] It's unreasonable in the circumstances the stated processing times is one factor.
Now the other thing people need to understand, and I've said this before, mandamus is chopping down a tree, tipping over a vending machine or breaking up with a boyfriend or a girlfriend. You may have to do it more than once. You do it bad, there might be some movement. Yeah, right. Okay, fine. Discontinue. Don't do it. Demand, no movement, ALJR. Okay. Some movement. Now technically [inaudible 00:40:33] We know that it doesn't count. Whatever happens after ALGR is not counted. Otherwise you just take one stupid step [inaudible 00:40:42].
I'm doing mandamus for the fifth time for one client. It's just one of those things. So again, it depends on the particular application. On a citizenship matter, what does it matter? There's no harm, right? I mean, if he's eligible, he's eligible. So it's contextual, but processing times isn't that foremost in my mind. I look at the type of the application. I got a single guy from Yemen who's a PR, he hasn't left Canada. I need citizenship for this guy so he can go potentially work abroad or work for a better oil and gas company. It depends on the needs of the particular client.
Deanna: Yeah, I like that. [inaudible 00:41:31]
Raj Sharma: I need a travel document. My dad is really sick. I really need citizenship. The travel document is taking 11 months to get. All right, I'll pull that demand fairly quickly. So it all depends on the needs of the client. Again, now that everyone knows about mandamus, so this little secret, non-secret is out, everyone's been asking about mandamus, but many times I tell people, I'm like, you know what? Not right now. Come talk to me in a few months. Come talk to me in six months.
Deanna: Yeah. Yeah. That's a great answer.
Steven Meurrens: So I'm at one individual who says that a lawyer told them there's no point in doing web form inquiries when you could just do mandamus. I guess that person's take is why ever ask for a status update when you can throw in mandamus?
Raj Sharma: Well, look, it depends. If you've done 15 web form applications, no one's getting back to you, you know what, I'm not a huge fan of MP inquiries. I'm not a great fan of web... If they're ignoring you, I mean, sometimes you have to get the... Then one way of getting their attention is certainly mandamus application.
Deanna: I'm also very cautious about my own reputation in terms of being the lawyer that cries wolf every single time that something goes beyond the processing delay and I just want something to move. So what Raj is saying about having looked at all the facts of the case and said, this is one that is really egregious. It's not just simply that I'm paying attention to that status tracker on the website and saying, now it's too long.
Steven Meurrens: No, I'm the same. I'd say I'm pretty cautious on it, mainly for that reputation.
Raj Sharma: Look, I don't know about my reputation with CBSA or IRCC. I think that ship has sailed. All right?
Steven Meurrens: Oh no, they won't. I'm talking federal court or...
Raj Sharma: Yeah, yeah. I don't worry about that. They know that I will safeguard my client's interests. If they can't respect that, they can't respect it. I'm not losing any sleep about it. I do it when it's in the client's interest to do so. I don't really think about anything beyond that.
Steven Meurrens: No, but I guess the example that I'm getting...
Deanna: [inaudible 00:43:53]
Steven Meurrens: I've started to hear grumblings of express entry application goes in. One week later, someone's filing mandamus.
Raj Sharma: Yeah. Look, that being said, again, all these people pulling the trigger on mandamus too soon have never probably argued a mandamus application in front of a judge.
Raj Sharma: Only too soon, they're using it as a collateral attack. That's not in the client's interest either.
Deanna: No, exactly. So that's all I'm getting at.
Raj Sharma: It's not in our judicial systems. We're still officers of the court. We can't plug up [inaudible 00:44:28]
Deanna: For sure.
Steven Meurrens: I'm concerned that there's some information or misinformation spreading of like, oh, just do mandamus with job.
Raj Sharma: Yeah, this happens all the time. They're like, oh yeah, we can do this now or we can do that now. I've been hired by consultants, other lawyers, and again, they think judicial review is like an appeal and it's not. Then you're like, look, I need to review everything. 50% of the time, I'm like look, probably there's no reasonable decision or it's not warranted at this time. Mandamus is not a magical wand. It's nothing like that. You really have to understand and steep yourself in the client's circumstances and the overall context and then go from there.
Deanna: Whether the legal test has been met.
Raj Sharma: With mandamus, be careful what you wish for. You want an interview, you'll get an interview. Mandamus is just a simple thing. I need movement. I need substantive movement or decision or finalization.
Deanna: Yeah, definitely.