It’s no secret that Canada’s immigration system has been stretched thin, and this has seemingly worsened over the course of the pandemic. With government employees working remotely, Immigration, Refugees and Citizenship Canada’s ability to process applications has been limited. As a result, since 2020 the backlog has doubled to 2.1 million people.
The backlogs have caused extra strife for those with ongoing study commitments in Canada. Some international students have waited upwards of six months with no information on the status of their applications. Many have even begun their courses online without a student visa. Currently, processing times for student visas are 11 weeks. With the federal government focused on refugees from Ukraine and Afghanistan, in addition to the pandemic-related travel restrictions causing huge delays, some applicants feel like international students are being placed on the backburner.
Others are opting to defer their studies until they learn more about the status of their applications, but that is not an option for all. The reality is that, even for those with the means to do it, it can be devastating to stall an important step in one’s life. Especially when that step involves moving to another country to further your education and make a better life for your family.
For students with spouses, programs like the Spouse Open Work Permit can be essential to ensuring families can stay together. Unfortunately, under this program, many are left waiting and people are growing increasingly impatient. To mend the problem, Immigration, Refugees and Citizenship Canada is hiring new staff, digitizing applications, and reallocating work amongst its global office network.
This year, Immigration, Refugees and Citizenship Canada updated its processing times tool for greater accuracy in predicting the time to process applications. Processing times are updated on a weekly basis for temporary residence applications and most permanent residence and citizenship services. The update now reflects the large volumes of applications that are being processed and any changes that affect the government department’s ability to process.
While helpful in alleviating some of the anxiety many applicants are feeling, the new tool is not exactly a fix. Some applicants are seeing their updates increasing the wait time by more than 3 times. For those that opt to contact Immigration, Refugees and Citizenship Canada via their online form, the information sent back may not actually address their concerns.
For those who have been waiting for a very long time, it may be possible to use the judicial process to speed up the processing of their application. Section 72(1) of the Immigration and Refugee Protection Act provides for judicial review with respect to any matter such as “a decision, determination or order made, a measure taken or a question raised.” Judicial review is exactly what it sounds like – a judge is given the opportunity to review the decision of a decision-maker.
However, it is only available to those who have exhausted their appeal rights. This means a decision would have already needed to be made by the Immigration and Refugee Board, and an appeal must have already been sought with either the Immigration Appeal Division or the Refugee Appeal Division.
If you have been waiting a long time, another route you can take is to seek an order for mandamus. Mandamus comes from the Latin word meaning “we command.” Essentially, an order for mandamus is asking the court to order a government officer or public authority to do something they are obligated by law to do. In this instance, the writ of mandamus would ask the court to order Immigration, Refugees and Citizenship Canada to decide on an application within a specific timeframe. This is considered a drastic remedy, and is only used where there is a “clear and indisputable right to the relief sought.”
The Federal Court of Canada has exclusive jurisdiction to hear and determine cases on the writ of mandamus. In Apotex Inc v Canada (Attorney General), the Federal Court of Appeal held that eight requirements must be met before mandamus can be issued. These requirements are as follows:
The third requirement for mandamus involves unreasonable delay. When there is unreasonable delay in the performance of a public duty, it can be implied that there has been a refusal to perform. Delays can be considered unreasonable if three requirements are met, as set out in Conille v Canada (Citizenship and Immigration):
At Garson Immigration Law, we are exclusively dedicated to the practice of immigration law. We understand that waiting for your immigration application to be processed can be stressful. Our immigration lawyers can help successfully guide you through the immigration process and find solutions for your individual immigration needs.
We work to find effective solutions for our clients in all kinds of immigration matters, including permanent residence, inadmissibility, and US immigration. If you have any questions about an immigration application, do not hesitate to reach out to us online or by calling us at 416-321-2860.
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