Docket: IMM-12840-25
Citation: 2026 FC 931
Calgary, Alberta, July 10, 2026
PRESENT: The Honourable Justice Battista
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BETWEEN:
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YU DAI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS AND JUDGMENT
I. Overview
[1] The Applicant challenges the reasonableness of the delay in finalizing her permanent residence application under the Home Child Care Provider pilot program (Program) and requests the Court to issue an order of mandamus, requiring the application to be finalized “without further delay.”
The Respondent defends the delay by pointing to Ministerial Instructions (MIs) that describe processing priorities under the Program. One of the issues for resolution is whether the MIs are better considered to have changed the inherent time requirements for the program, or whether the MIs are more appropriately considered as a potential justification for the delay.
[2] For the reasons below, Ministerial policy instructions offered to explain a delay are more appropriately considered as a justification for a delay rather than as a factor in determining the inherent time requirements for an application.
[3] In this case, MIs which previously appeared to offer a reasonable justification for the delay were repealed and were not replaced by any processing policy or instructions. There is accordingly no reasonable justification for the delay, and the application for judicial review together with an order of mandamus is granted.
II. Background
[4] Immigration, Refugees and Citizenship Canada (IRCC) placed the Applicant’s application for permanent residence into processing over three and a half years ago, on January 1, 2023. Since that time, Global Case Management System (GCMS) notes reveal various processing steps, with a significant gap in activity from November 26, 2024, to September 3, 2025, and from that time to April 16, 2026, when the Certified Tribunal Record (CTR) was filed with the Court.
[5] The Applicant provided evidence that in June 2025 she was advised by IRCC that the processing time for her application would be 23 months. The Respondent presented an affidavit indicating that as of May 2026, the remaining processing time for her application was 39 months, with 18,300 applicants in the processing queue ahead of the Applicant, and a total of 38,800 applicants waiting for their application to be processed.
[6] The Respondent also provided evidence that the Minister of Citizenship and Immigration issued MIs on March 22, 2025, and on December 8, 2025, related to the intake and processing of applications in the Program (Ministerial Instructions regarding the processing of applications under the Home Care Worker Immigration Pilot Program (Child Care) and Home Care Worker Immigration Pilot Program (Home Support) (Ministerial Instructions, Canada Gazette, Part I, vol 159, no 12, (March 22, 2025)) and the New Ministerial Instructions regarding the processing of applications under the Home Care Worker Immigration Pilot (Child Care) and Home Care Worker Immigration Pilot (Home Support) (Ministerial Instructions, Canada Gazette, Part I, vol 159, no 51, (December 12, 2025).
III. Issue
[7] The sole issue is whether the criteria for an order of mandamus have been fulfilled and if so, whether an equitable bar exists to refuse that remedy (Benison v Canada (Royal Canadian Mounted Police External Review Committee), 2026 FCA 53 [Benison] at paras 45-52).
IV. Analysis
[8] For the reasons below, the Respondent has not provided a reasonable explanation for the delay, and accordingly the delay is unreasonable.
[9] The criteria for an order of mandamus are described in Apotex v Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 FC 742 (CA) [Apotex] at 766-769:
(1) there must be a public legal duty to act;
(2) the duty must be owed to the applicant;
(3) there must be a clear right to the performance of that duty;
(4) where the duty sought to be enforced is discretionary, certain additional principles apply;
(5) no other adequate remedy is available to the applicant;
(6) the order sought will have some practical value or effect;
(7) there is no equitable bar to the relief sought; and
(8) on a balance of convenience an order of mandamus should be issued.
[10] As recently explained by the Federal Court of Appeal, the requirements for mandamus are met when the Applicant establishes the first four criteria of the Apotex test, and the remaining four criteria provide an opportunity for the respondent to demonstrate that the remedy should be withheld (Benison, at paras 45-51).
[11] The dispute in this case, as in many cases involving requests for mandamus, centres on the third branch of the Apotex test, which asks whether the Applicant has a clear right to the performance of the duty owed to her. In this case, the duty is to finalize her application.
[12] The recognition of the Applicant’s right to the finalization of her application in turn requires an examination of whether the administrative delay is unreasonable based on the following criteria:
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1)the delay in question has been longer than the nature of the process required, prima facie;
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2)the applicant and their counsel are not responsible for the delay; and
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3)the authority responsible for the delay has not provided satisfactory justification.
(Conille v Canada (Minister of Citizenship and Immigration) (T.D.), 1998 CanLII 9097 (FC) [Conille] at para 23).
[13] The parties agree that the Applicant and her counsel are not responsible for the delay. Therefore, the Applicant must only establish that the delay is longer than the nature of the process requires, and if she is successful in doing this, the onus will shift to the Respondent to provide a justification for the delay (Benison, at para 98).
A. The delay is longer than the nature of the process required
[14] The inquiry at this stage examines “the time requirements inherent to the administrative proceedings”
to determine whether an impugned delay is inordinate. The inherent time requirement is determined by the general procedural, legal and factual complexities involved in the process. It also considers the purpose of the proceedings and the rights and interests of the affected persons (Benison, at para 77).
[15] Applying these factors to the present case, the nature of the process involves applications for Canadian permanent residence pursuant to the Program’s criteria. It is an essentially administrative process, which does not involve the complexity of a judicial or quasi-judicial process or a process with rigorous procedural requirements. At one point the Applicant was advised that her application would be completed within 23 months. This was not a binding undertaking, but it serves as an indication of a feasible timeframe estimated to be required for processing of this type of application (Benison, at para 91).
[16] The purpose of the Program is to fill labour gaps by providing access to permanent residence for home care workers who provide essential support to seniors, children, and people with disabilities. In MIs the Program is described as “responsive to the needs of the country”
and a Program goal is described as providing “stability to those already living, working, and contributing”
to Canada. The interest in achieving stability for those eligible for the Program is undermined by delay. For example, the Applicant attested to the serious financial, emotional, and family hardship she has experienced because of the delay in finalizing her application.
[17] The broader statutory purpose of immigration processing is to attain immigration goals “by means of consistent standards and prompt processing”
as well as to maintain the integrity of the immigration system “through the establishment of fair and efficient procedures”
(Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], ss 3(1)(f) and 3(1)(f.1)). These objectives place a general emphasis on promptness, efficiency and consistency in immigration processing.
[18] The Applicant has waited over 42 months for her application to be finalized, and was advised that as of May 2026 a further 39 months of processing could be expected. This amounts to a total processing time of over 79 months, which is over six years.
[19] In my view, the nature of the Program, combined with its purpose, evidence of previous service standards, statutory objectives and the Program’s impact on those affected indicate that the delay experienced by the Applicant is longer than that required by the nature of the process. The first criterion for determining unreasonable delay has therefore been met (Conille, at para 23).
[20] As stated above, the Respondent provided evidence indicating that there was a change in processing policy through MIs which impacted the processing time of applications. In my view, this evidence is appropriately considered as a justification for the delay, rather than a consideration relevant to determining whether the delay is longer than the nature of the process requires. There are two reasons for confining the Respondent’s evidence to the third factor in Conille.
[21] First, this change in processing priorities is similar to an increase in caseload, insufficient resources, or prioritization which the Federal Court of Appeal indicated was more appropriately considered as a justification rather than a factor in determining whether the delay exceeds the inherent time requirements of the process (Benison, at paras 93-95).
[22] Second, confining evidence from a Respondent to explain a delay to the third, “justification”
factor from Conille prevents a Respondent’s justifications from bleeding into other criteria and assuming a disproportionate weight in the analysis (Kia v Canada (Citizenship and Immigration), 2026 FC 780 [Kia] at para 13).
B. The Respondent has not provided a reasonable justification for the delay
[23] In my view, a justification provided for a delay is appropriately evaluated using the reasonableness standard of review when the delay is challenged as unreasonable. A reviewing court asks whether the reasons provided to explain the delay are transparent, intelligible, and justified (Kia, at paras 21-25).
[24] As described above, the Respondent provided a detailed affidavit attaching evidence explaining the processing policy changes implemented through MIs. The two relevant MIs are:
- MIs dated March 22, 2025, which took effect on March 31, 2025, and were set to expire on March 31, 2030, unless revoked earlier by the Minister (MI-1). These MIs limited the number of applications that may be processed annually over a 5-year period and also limited the intake of new applications. For example, these MIs determined the number of applications for processing between March 31, 2025, and March 30, 2026, to be 2610 applications.
- MIs dated December 12, 2025, which took effect on March 31, 2026, and will expire March 30, 2030 (MI-2). MI-2 repealed MI-1, set the intake of new applications at zero, and provided no information regarding the manner in which applications are to be processed.
[25] At the hearing of this application for judicial review, counsel for the Respondent indicated that it was not the intention of MI-2 to repeal the detailed processing instructions described in MI-1. However, this was new evidence which contradicts the plain language of MI-2 and cannot be considered by the Court.
[26] MI-1 may have provided a reasonable justification for the application’s delay. MIs are statutory instruments authorizing the Minister to set processing priorities. MI-1 was announced publicly through pre-publication in the Canada Gazette, and they described a comprehensible system of application processing. The connection between the delay experienced by the Applicant and MI-1 is intelligible and transparent. MI-1 is similar to MIs previously found by the Court to justify a delay (Yim v Canada (Citizenship and Immigration) 2026 FC 254 at paras 8-13, 28-29).
[27] However, MI-2 nullified the potentially reasonable justification provided by MI-1, replacing it with nothing. MI-2 contains no transparent, intelligible processing policy, leaving a processing policy vacuum. The Applicant does not even have an assurance that her application will be processed in the order in which it was received. The only potential justification provided by MI-2 is justification for an open-ended delay found unreasonable in Benison, such as “we will get to it slowly but surely as soon as we can”
(Benison, at para 119). However, the Applicant has not even been provided with that.
[28] What remains is a processing time calculator provided by the Respondent indicating that the processing time remaining for the Applicant’s application is estimated to be 39 months and there are 18,300 people ahead of her. This is an estimate of a processing time, as opposed to a service standard. The calculator also explicitly states that the application may take longer than 39 months and is not a maximum processing time nor guarantee.
[29] This assurance provides no assurance; it is not a policy, it does not describe the manner of processing, and it provides no assurance that other applications will not at some point be placed ahead of the Applicant in the processing queue. We have seen from the Applicant’s experience that such processing estimates can change dramatically in a manner unfavourable to her.
[30] I realize that the Court has previously found that MI-1 and MI-2 can provide justification for delay in the Program (Hussain v Canada (Citizenship and Immigration) 2026 FC 885), and I agree that MIs are generally capable of providing such justification. As stated by the FCA in Benison at para 107:
[Previous cases] hold that the IRPA affords the Minister the power to set policies and make decisions to manage the flow of immigrants to Canada, including imposing deliberate delays on the processing of certain classes of applications for the benefit of other classes, so long as the policies and decisions are made in good faith and are consistent with the purpose, objectives, and scheme of the IRPA. Courts must assess the reasonableness of delays in the processing of an immigration application in light of this context, and such policies and decisions may constitute a satisfactory justification for the delay.
[31] However, the analysis is contextual. It is not the mere issuance of MIs related to processing that are capable of providing justification. The contents of such MIs must be examined.
[32] The question is not whether the Minister is legally authorized to issue instructions that eliminate prior processing systems, instructions and timelines; clearly, she has this authority. The question is whether MIs that eliminate and do not replace prior processing systems, instructions and timelines can be determined a reasonable justification for inordinate delay. I do not believe that such a determination is justified.
[33] With regard to the program to which the Applicant applied, MI-2 removed any guidance on the processing of applications and removed any means to understand when or if the Applicant’s application will be processed. As such, it does not provide any transparent, intelligible justification for the delay. It follows that the delay is unreasonable and the Applicant has a clear right to the performance of the duty owed to her, which is the finalization of her application.
V. Conclusion
[34] Following the determination of inordinate delay in the processing of the Applicant’s application, the onus shifted to the Respondent to justify the delay. The evidence provided by the Respondent reveals a policy decision to remove all previous processing systems, instructions and timelines without replacement. This cannot be considered a reasonable justification because it exposes the Applicant to open-ended delay. The Applicant has therefore established an entitlement to mandamus and no equitable bars to its issuance have been identified. Accordingly, the application for judicial review and the request for mandamus are granted.
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