Mandamus is the final solution for all applicants who have been awaiting a decision on their temporary or permanent visa applications for years.
What is Mandamus?
The word ‘Mandamus’ in Latin is a writ in common law which orders a government officer or a lower court to perform their ministerial responsibilities and duties correctly. The Superior Court issues a Mandamus, which is a judicial remedy ordering a specific corporation, public authority or government to do certain statutory duties and acts which they are obliged to do as per law.
How is a Mandamus issued?
An applicant can apply for a writ of Mandamus and its enforcement only if they are able to exhibit that they have a legal right to compel the respondent to do or refrain from doing certain acts. These acts must have specific traits such as:
- The act must be a duty for the public
- The act needs to be mandatory and not optional
The court requires many conditions to be fulfilled before it issues a writ of Mandamus such as:
- The act must be a legal and public act
- The act should be a duty towards the applicant of the writ
- A clear right must exist for the duty to be performed
- All conditions before arising of the duty must be satisfied by the applicant
- The duty to be performed must have a prior demand and a reasonable time should be given to comply with the demand before refusal
- An unreasonable delay must exist subsequently, which is either implied or expressed
- The applicant should have no other options or remedies to resolve the situation
- The order sought must have some practical value
- The court must not find an equitable bar to the remedy as sought in the application
The counsel should consider the processing times on the CIC website when they are considering if and when to file an application for Mandamus. The processing time should be determined on the excess period of the application over the normal processing times. For submission of the application, factors supporting the completeness of the application should also be considered.
Staff shortages, departmental backlogs have not been accepted as sufficient explanation for not giving any decision on any immigration application. Individual case facts are vital and are the basis for assessing the cases.
All case arguments are tailored to the specific case facts, the applicant’s efforts to move the case forward and the failure of the respondent to perform their duties.
A Balance of Convenience needs to exist for a Mandamus to come into existence. The applicant needs to show that the balance of convenience favors the applicant who must have put in all their efforts to move their case forward. Mandamus is a good option for applicants and helps to remove the prejudice which made the applicant suffer due to the unplanned delay.
We can Help
The well-informed immigration lawyers and consultants at Nanda & Associate Lawyers will assist you in all matters regarding application for Mandamus. If you are awaiting decision on your Visa application for years, applying for a writ of Mandamus is a good option. Connect with us today to discuss more on how to move ahead with a Mandamus remedy. We will impart sound legal advice to help you on the path to a better and safer future for you.
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