Immigration Refugee and Citizenship Canada has a large backlog of immigration applications. It is not uncommon for applications to be delayed more than they should or more than the processing time indicated by IRCC. 

Below we will cover what you can do to get a decision on your immigration application and what you can do to prepare to take action. 

If you contact IRCC, their response is normally to send a webform and wait. Webforms often get some generic response that may or may not answer the question you asked. If you try contacting them by phone (if you are even able to get through), the responses seem to be similarly unhelpful. It is frustrating to applicants and their lawyers. 

The solution is to ask a court to order IRCC to make a decision on your immigration application. In legal terms it is a “Mandamus” application (it means “we command” in Latin). If you get this decision from the court, IRCC is mandated to make a decision following the terms of the order. It does not mean that your application will be approved, but it means you will get an answer.

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Will the government be angry I sued them and deny my application?

No, you are not suing to get someone fired or anyone in trouble. You are simply asking for a decision to be made on your application after unreasonable delay.

How can I file a delay lawsuit on my immigration case?

Listed below are the conditions that must be met to have a good chance of obtaining a mandamus order. If one of the following conditions is not met, it is unlikely that you would be successful on a mandamus application. 


First, there must be a legal duty to act. 

There is a duty owed to immigration applicants by the Minister of Immigration. This is established by section 11(1) of IRPA. This section states that where an applicant, before entering Canada, applies to an officer for a visa or for any other document required by the regulations, the visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this act. 

This means that there is a duty for a decision to be made on your immigration application - it must either be approved or refused, not sit in limbo indefinitely. 

There must be unreasonable delay 

As the applicant, you need to be able to show that you met the following conditions: 

  • You submitted a complete application, including payment of processing fees and whatever supporting documents are necessary for your immigration application. This is why it’s important to put your best foot forward when you submit your immigration application. It’s one of the benefits of working with an immigration lawyer. You do not want your case to be delayed for a few years before finding out your case was deficient. 
  • You will have to show that you made a demand to the government to perform this duty. When you hire us to file a Mandamus application, we are able to do this on your behalf. The demand must be to the office processing the application in question. The demand must provide a deadline for the fulfillment of their duty, failing which the applicant will apply for mandamus to the Federal Court. Most of the times, clients have been waiting for months if not years where they have been diligently making these kinds of demands. It’s important to keep a record of any demands sent - copies of the correspondence as well as well as proof of transmission. If you have been calling, it is important to keep a record of these calls - including date, who you spoke with, and the content. 
  • Any deadline given in these types of demands must be reasonable. For example, 20-30 days, before submitting an application for Mandamus. 
  • What is considered “unreasonable delay” will be assessed by the courts on a case to case basis. The Federal Court looks at previous court cases as guides. The following conditions must be met (Connille v Canada (MCI) 1999 2 FC 33): 
  • The delay in question has been longer than the nature of the process required. For a guideline of the time required, you can check the processing times for your type of application here
  • The applicant (or their lawyer) is not responsible for the delay. 
  • The authority responsible for the delay has not provided satisfactory justification for the delay. 
  • The court will look at the effects of the delay on each particular case. Just because your application has taken longer than the processing time indicated, does not mean it is automatically unreasonable. It depends on the facts of each case. 

There must be no other adequate remedy available 

An objective of immigration legislation is to reunite families. Normally, an immigration officer is the only one that may grant the visa. However, in situations where you are seeking an immigration visa, you need to explore the possibility of a temporary visa, as an alternative, while the immigrant visa is in process. In practice, many applicants do try for a temporary visa as well. This means that by the time this type of order is sought, there is no other adequate remedy available. 

The order you are seeking will be of some practical value or effect 

The practical effect of the mandamus order is compelling an immigration officer to process the immigration application within a given period of time. It has practical value to the applicant. 

In the exercise of discretion there is no equitable bar to the relief sought 

To obtain an order for mandamus, you must not be responsible for the delay. For example, if there has been a request for information, you must have provided all information requested in a timely manner. 

It is important to keep record of how any requests were complied with and the time frame for such requests and responses. It is very helpful to have detailed record of any contact or follow-up on your application. 

Balance of Convenience 

You must show that you are suffering some prejudice as a result of the delay. For example, the effect the delay of the visa has on your family or financial situation. 

Won’t IRCC just list their giant backlog or other systemic problems as their explanation for the delay in processing my immigration application?

They might. However, the Court has refused to accept departmental backlogs, or staff shortages, as reasonable explanations. The Court will assess each case on its own facts.

What happens after I sue the government?

Generally speaking, what happens is your file will get attention and may start moving. The goal of the application is to get a decision on your application. Thus, most applicants are happy to have their application reviewed and decided, even if it means you won’t get your day in court. 

It is not common for cases to proceed to a full hearing.

Can I sue the government myself or do I need a lawyer?

A lawyer is not required to access the court system, however, it is highly recommended. For Mandamus applications, there is no bright-line test to say that after x months of delay, you can sue. Experienced lawyers can increase the chances of success because they can tailor the arguments regarding unreasonable delay based on your facts, what you have been doing to move your case along, and taking into account the case law in this area.