Docket: IMM-11174-24
Citation: 2025 FC 987
Toronto, Ontario, June 2, 2025
PRESENT: Madam Justice Whyte Nowak
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BETWEEN: |
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SAQIB JAVED |
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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 |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Saqib Javed, is a citizen of Pakistan who submitted a permanent resident application [Application] under the Express Entry – Federal Skilled Worker stream after receiving an invitation to apply. The Applicant brings this application seeking a writ of mandamus compelling the Minister of Citizenship and Immigration [Minister] to make a decision on his Application, which has been outstanding since March 2021.
[2] For the reasons that follow, I am granting this application as the Applicant has made out the test for the issuance of a writ of mandamus, including by reason that the Minister has failed to provide a meaningful justification for the delay.
II. Facts
A. Processing history of the Applicant’s Application
[3] The Global Case Management System [GCMS] notes related to the processing of the Application show that after the Application was submitted in March 2021, Immigration, Refugees and Citizenship Canada [IRCC] (the Centralized Intake Office) reviewed the Applicant’s Application in May 2022. The file was transferred to the Rapid Response Operation Centre and was placed in queue for further review.
[4] IRCC reviewed the file for eligibility in July 2022 and the file was placed in queue for officer review. When an officer reviewed the file, they noted that there was a change in the Applicant’s age between the issuance of the invitation to apply and the submission of the Application, which resulted in the Applicant’s total point score falling below the minimum requirements. Because of this, the Applicant’s file was forwarded for additional review in October 2022, then it was put on hold pending security checks. In the same month, the Applicant requested a copy of his GCMS notes and became aware of the age issue. To remedy this issue, the Applicant wrote to IRCC multiple times to request that the IRCC exercise discretion under the public policy which specifically addresses this possibility: the “Public Policy to exempt applicants for Permanent Residence from certain age-based requirements between invitation to apply and application.”
In January 2023, the Applicant’s request was officially received by IRCC.
[5] In August 2024, an officer assessed the Application for eligibility. The officer exercised discretion under the public policy to exempt the Applicant from the age requirement and found the Applicant eligible for permanent residence. The GCMS notes indicate that the Applicant’s Application is pending background verification checks which are required to continue processing.
[6] The GCMS notes also show that the Applicant responded to early IRCC requests for information in 2021 and has been diligent in updating his Application: he provided updated passport and change of address information in March 2024 and April 2025, respectively.
III. Issues and Standard of Review
[7] The only issue raised by this application is whether the Applicant has met the test for the issuance of a writ of mandamus.
IV. Analysis
[8] The Court must be satisfied that the Applicant has demonstrated all of the conditions for the issuance of a writ of mandamus as articulated in Apotex Inc v Canada (Attorney General) (CA), [1994] 1 FC 742 (FCA) [Apotex test]. The Apotex test requires, inter alia, that an applicant show that they are owed a clear right to the performance of a public legal duty to act by a decision maker who has failed to act. Where there has been an unreasonable delay on the part of a decision maker, it may constitute an implied refusal to act.
[9] The test for determining whether a delay in performing a public legal duty is unreasonable considers whether: (i) the delay in question is prima facie longer than the nature of the process required; (ii) the applicant bears any responsibility for the delay; and (iii) the authority responsible for the delay has provided a satisfactory justification (Conille v Canada (Minister of Citizenship and Immigration) (TD), [1999] 2 FC 33 at para 23). There is no uniform standard for what constitutes a reasonable length of time; each case turns on its facts (Bidgoly v Canada (Citizenship and Immigration), 2022 FC 283 at para 33).
[10] As there is no suggestion that the Applicant is responsible for any part of the delay, his case turns on whether the Respondent has provided an adequate response for the delay, including the apparent inactivity in processing the Applicant’s Application between October 5, 2022, and August 20, 2024.
A. Has the Applicant shown prima facie delay?
[11] The Applicant submits that it has now been 49 months since his Application was submitted, which is eight times the standard processing time, which, as of the filing of the Application, was six months.
[12] The Respondent has submitted an affidavit [the Respondent’s Affidavit] from a paralegal from the Department of Justice who provided background on the meaning of IRCC’s posted estimated processing times. The evidence of the Respondent is that processing times are historical and are measured based on how long it took to process 80% of applications in the past. According to the Respondent’s Affidavit, service standards similarly reflect IRCC’s target for the processing of 80% of applications and are not guaranteed.
[13] Even taking into account the Respondent’s explanation of IRCC processing times and contemporary service standards, I find that the Applicant has made out a case of prima facie delay that calls for an explanation for the delays in the processing of the Applicant’s case. As the Applicant submits, while IRCC processing times are not guaranteed, they do assist the Court in assessing the reasonableness of the processing of an individual application.
B. Has the Respondent provided a satisfactory justification for the delay?
[14] While the Respondent emphasizes that each application has to be looked at individually, it has provided no insight into the processing of the Applicant’s Application. Moreover, the Respondent’s Affidavit is from someone who has no direct knowledge of the processing of the Applicant’s Application and simply attaches the GCMS notes.
[15] The GCMS notes reveal a lack of activity on the part of IRCC between October 5, 2022, and August 20, 2024, however no explanation for this period of time has been provided. Nor is any explanation given regarding the nature of the ongoing screening and security checks that takes this Application outside of the standard 80% of applications that are processed within six months. The Respondent’s bare submission that the GCMS notes show ongoing security checks is the kind of blanket statement that this Court has consistently held to be inadequate (Sowane v Canada (Citizenship and Immigration), 2024 FC 224 at para 29). I agree with the Applicant that the Respondent’s failure to provide any explanation — let alone an adequate one — for the delay in processing the Application (AA v Canada (Citizenship and Immigration), 2024 FC 1579 at para 17) justifies a finding of unreasonable delay (Abdolkhaleghi v Canada (Minister of Citizenship and Immigration), 2005 FC 729 at para 18).
[16] The Respondent argues that the Applicant has not met the test for mandamus because he has failed to satisfy the requirement of showing significant prejudice. A recent line of authorities has provided a clear rationale for why prejudice, while relevant to the law of abuse of process based on delay in administrative law, has been improperly imported into the test for mandamus and is antithetical to its purpose by requiring a level of hardship that mandamus is specifically intended to prevent (Sharma v Canada (Citizenship and Immigration), 2025 FC 796 at para 6, citing Tousi v Canada (Citizenship and Immigration), 2025 FC 671 at paras 11–17 and Majidi v Canada (Citizenship and Immigration), 2025 FC 680 at para 31). I agree.
V. Conclusion
[17] The balance of convenience favours the Applicant and an order of mandamus shall issue.
[18] The last issue I raised with the parties is how to fashion an order. I agree with the Respondent that security checks are critical and should not be rushed, including by reason that IRCC officers are reliant on the cooperation of parties outside their control. The Respondent therefore suggests that any order issued by the Court should not include a specific timeline; rather, the Court should trust IRCC to conduct the security checks in a reasonable amount of time. This trust has not been earned. While I do not think uninformed timelines serve either IRCC or the Canadian public, this is the consequence of the Respondent having chosen not to provide any evidence regarding the nature and complexity of the ongoing security checks related to the Applicant’s Application.
[19] The Applicant has not shown “special reasons”
for costs and none shall be granted.
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