The
Writ of Mandamus is a recourse available in
extraordinary circumstances, pursuant to which the courts may order a government official to do an act which that government official has a clear, unequivocal duty to perform.
There are many difficulties and obstacles involved in obtaining
Mandamus relief even when it is most warranted. Like most forms of civil litigation it will ordinarily take time. It can be prohibitively expensive.
But in the context of a PR card replacement (renewal) application, the prospect of obtaining
Mandamus relief seems particularly unlikely because there is no compelling
legal need for a PR to have a PR card. Not having a PR card does not directly have a detrimental legal effect on the PR's status.
There is no impact at all on the status of a PR in Canada.
A PR who is abroad without a PR card has the alternative remedy of applying for and obtaining a PR Travel Document.
(In regards to the latter, remember that in contrast to Canadian citizens, who have a Charter right to travel internationally, PRs only have a Charter right of mobility
within Canada.)
For many, the practical impact is actually more severe, far more inconvenient. But Mandamus relief is not ordinarily available to make things more convenient, but rather only when an essential, legal right or privilege has been taken away or denied, and only then when there is no doubt about the government's obligation.
PR renewal is merely about calculating whether someone was in Canada or not. It does not involve any security checks.
This is not correct. Indeed, as oft noted, Secondary Review is ordinarily about something
other than compliance with the PR Residency Obligation. If the issue is compliance with the PR RO, the PR will be asked to complete a Residency Questionnaire and the local office will make a Residency Determination. (Every PR card application, and every PR TD application, inherently requires and involves a Residency Determination, but the validity of the PR's status otherwise can be questioned, and if referred to SR it is questioned.)
Even if the circumstances suggest that questions about PR RO compliance triggered the referral to SR, the scope of inquiry in SR is not limited to that and ordinarily is about other or additional issues.
In particular,
admissibility itself, in broad terms, is at issue, which can include consideration of criminality, security issues, and misrepresentation for the purpose of obtaining entry into Canada. This can involve
revisiting the PR's representations in the original PR application. It can involve investigating representations the PR has made to CBSA officers during PoE examinations. It can involve assessing the authenticity and validity of any documents the applicant has presented to CIC or IRCC,
at any time, ever.
As for navigating the federal court
pro se (in one's own capacity, as in without representation), not all cases are created equal. As already noted, the
Writ of Mandamus is a particularly complicated and difficult legal procedure. Many if not most lawyers are not particularly competent to litigate an application for a
Writ of Mandamus. The prerequisites are technical and tricky. There is no absolute bar to proceeding
pro se, and there are cases in which
pro se applicants have been successful (but I have never seen any successful
Mandamus applications for delayed PR card applications -- there are a couple older successful
Mandamus cases where CIC refused to deliver already issued new cards), but the odds are long, the climb steep, and costs and fees can be charged against the applicant who loses . . . meaning, if one loses, they can be ordered to reimburse the government some of its costs including lawyer fees. Not much to be gained by not paying for a lawyer only to end up paying for the government's lawyers.
None of the above is intended to condone let alone justify the excessive and inordinate amount of time some, perhaps many PRs, suffer due to being left in limbo while their PR card application is bogged down in SR. That is, indeed, unfair, an injustice.
It is intended to clarify that PRs in SR have limited options and that, but for an extremely unusual case, they have little chance of obtaining recourse by way of the
Writ of Mandamus.
For those who can travel in the U.S., while still inconvenient, at least they can travel abroad and return via a route through the U.S. without risking being stuck abroad for a long while while a PR Travel Document application is pending.
One year PR cards.
It is a sad irony that if IRCC has adjudicated a PR's application for either a PR card or a PR Travel Document, and determined the individual is inadmissible, no longer a PR, or a 44(1) Report has been reviewed by the Minister's Delegate and a Removal Order for Inadmissibility has been issued,
that individual is entitled to a one-year PR card pending an appeal. It is a sad irony that those adjudicated inadmissible have, in effect, more rights to a status card than those who have not been adjudicated or otherwise determined to be inadmissible. It seems, to me, that justice requires that, at the least, PRs bogged down in inordinately long SR should be issued short-term, temporary PR cards.
This incongruity and disparity could be part of an equities argument in an application for a
Writ of Mandamus. But again the hurdles involved in prosecuting the
Mandamus application are daunting, prohibitive, and in the context of SR for PR card applications, generally not worth pursuing.
Further observation about proceeding pro se:
It does not matter how smart a person is. Legal procedure can be complicated and difficult in ways which only specialized training and experience helps. Legal terminology often does not comport with what a dictionary says.
And even the most competent jurist is well aware of the well-worn and well-apt adage:
he who represents himself has a fool for a client.
Litigation and judicial procedures are in an entirely different realm than bureaucratic processes like immigration and citizenship applications. The latter are specifically, deliberately designed to make them as accessible to individuals as possible, to reduce the need for any professional assistance, let alone legal assistance, as much as practical. There is very little about formal procedures in the courts which is designed to make it accessible to the non-lawyer. As I already noted, when it comes to extraordinary procedures and process, like an application for a
Writ of Mandamus, the procedure tends to be beyond the routine scope of what many if not most lawyers are competent doing. Sure, immigration lawyers may be something of an exception in this regard, since during the Harper government there was an extensive and widespread failure to timely process applications that resort to
Mandamus was more frequently called for and pursued, with some success particularly in the context of suspended citizenship application processing. So perhaps more of these lawyers gained some experience in prosecuting
Mandamus actions.
The biggest area of success, however, appears to have been cases in which CIC, as it was then, proceeded to process the application, thus making an application for
Mandamus moot . . . and I suppose there are some SR cases in which the PR may similarly benefit, cases in which just giving the requisite notice (a proper demand that the responsible government official take action as required by law must be made before any application for
Mandamus can be properly commenced) might incite IRCC to process the application rather than litigate an application for
Mandamus. It is entirely possible that many more citizenship applicants obtained relief by just giving proper notice, making the proper demand for action, than the small number of litigated
Mandamus cases reported in published decisions.
Which, however, leads back to the prospect of proceeding
pro se: in terms of reports in the forums, it was apparent that those who had lawyers making the demand (which is a prerequisite to proceeding with a
Mandamus application) tended to have far better responses from CIC (again, this was back in 2011 to 2014, the years when the Harper government let thousands and thousands of citizenship applications wallow for years), and in particular, many who reported making such a formal demand themselves simply received no response from CIC. It appears that CIC took the demand letters from lawyers far more seriously.
