Background
Cihan Kirac, a Turkish citizen, arrived in Canada in 1993 and was granted refugee status. His first permanent residence application, filed in 1994, was refused after he was convicted on September 28, 2001 of four charges arising from his participation in a 1999 demonstration outside the Israeli consulate in Montreal, rendering him inadmissible for criminality. After obtaining a pardon from the Parole Board of Canada in 2009, he filed a second permanent residence application on January 11, 2010. By April 2024, having received no decision from Immigration, Refugees and Citizenship Canada (IRCC), Kirac sought judicial review, requesting mandamus to compel a decision, a finding of abuse of process, and costs.
The hearing took place on September 11, 2026, in Montreal before Associate Chief Justice St-Louis. The parties initially agreed that only criteria 3, 6, and 8 of the Apotex test for mandamus were in dispute. Following post-hearing written submissions, Kirac confirmed that IRCC had authority to consider humanitarian grounds under the legislation applicable when he filed his application, and abandoned his argument that IRCC could have rendered a decision as early as 2016, when an inadmissibility determination was pronounced. He also informed IRCC that he had no further submissions to make, had responded to all concerns, and requested a decision on the existing record. The Court consequently found that criterion 6—whether mandamus would have practical effect—was no longer contested, because the Minister’s objection that the new decision-maker was awaiting Kirac’s final submissions no longer applied. Only criteria 3 (clear right to performance of the duty) and 8 (balance of convenience) remained at issue.
The Court’s Holding
The Court allowed the application for judicial review in part, granting mandamus and ordering IRCC to decide Kirac’s permanent residence application no later than 60 days after the date of judgment. Applying the framework in Apotex Inc. v. Canada (Attorney General) and the Federal Court of Appeal’s decision in Benison, the Court found that Kirac had established a clear right to performance under criterion 3. The Minister conceded that the 16-year processing time exceeded what the nature of the process prima facie required, particularly given IRCC’s published average processing time of 29 months in 2024.
Regarding responsibility for the delay, the Court was not convinced that Kirac had discharged his burden for the period between January 2010 and late 2015, concluding that the delay during that period was not attributable to one party alone. The Minister acknowledged not knowing what occurred between early 2016 and late 2021 and offered no justification for that period of inactivity; the Court held IRCC entirely responsible for that unexplained delay. The delay between December 16, 2021 and July 5, 2022 was attributable to Kirac’s exchanges with IRCC concerning additional submissions, but the Court was not convinced that Kirac or his counsel were responsible for the delay continuing after his final representations in 2022. Invoking Mamut v. Canada (Citizenship and Immigration), 2024 FC 1593, the Court rejected the Minister’s reliance on general security concerns—the 1999 demonstration, the conduct of co-conspirators, and contradictions in the file—because she merely pointed to public events from 1999 and the early 2000s without connecting them to the delays experienced. The Court concluded that the facts were not so complex as to justify examination over all those years. On criterion 8, the Court found the balance of convenience favoured Kirac, noting that the Minister relied on no evidence to support refusing the remedy.
The Court rejected Kirac’s abuse of process claim. Although it exercised its discretion to consider the issue despite its being raised first in his supplementary memorandum, the Court found that two paragraphs of his affidavit—describing banking and credit disadvantages and psychological and emotional difficulties—were insufficient, without documentary support, to establish the significant prejudice required under Blencoe and Abrametz. The Court also denied costs, holding that satisfying the mandamus criteria does not itself constitute “special reasons” under Rule 22 of the immigration rules, and that Kirac had adduced no evidence of circumstances beyond unreasonable delay, such as significant prejudice or reprehensible conduct, to justify an award.
Key Takeaways
- Mandamus was granted on the specific record: a conceded prima facie excessive delay, an entirely unexplained period of inactivity from 2016 to 2021 attributable to IRCC, and security justifications that did not connect known historical events to the particular delays.
- The Court’s allocation of responsibility was period-specific: Kirac did not discharge his burden for 2010–2015, the 2021–2022 delay was his responsibility, and IRCC bore responsibility for the unexplained 2016–2021 inactivity and the post-2022 delay.
- General assertions of ongoing security or background checks, without evidence linking case-specific complexities to the delay, may fail to justify administrative delay, particularly where the underlying events are public and longstanding.
- Unreasonable delay sufficient for mandamus does not automatically establish abuse of process or special reasons for costs; both require additional evidence, such as significant prejudice or conduct meeting the high threshold under Rule 22.
Why It Matters
The decision illustrates the fact-sensitive application of the Apotex and Conille frameworks as clarified in Benison, including the shifting burden requiring public authorities to provide case-specific justifications for delay. It underscores that even very long processing times do not, by themselves, establish abuse of process or entitlement to costs, and that successful mandamus applicants must separately prove significant prejudice or other special circumstances to obtain those remedies.
For immigration practitioners, the judgment highlights the importance of period-by-period evidence of responsibility for delay and of documented prejudice when seeking relief beyond an order compelling a decision. It also confirms that mandamus under paragraph 18(1)(a) of the Federal Courts Act is not a vehicle for damages, and that costs in immigration matters remain exceptional.