On April 10, 2025, the Federal Court issued its decision in Tousi v. Canada (Citizenship and Immigration), 2025 FC 671. The Applicants, represented by Tyler Green of Green and Spiegel LLP, challenged the delay in their Start-up Visa permanent residence application. The Court granted the application for judicial review and found the delay unreasonable and ordered Immigration, Refugees and Citizenship Canada (IRCC) to render a decision within 90 days.
This decision marks a significant development for Start-up Visa applicants, many of whom are facing growing backlogs and prolonged processing times. The Court’s findings in Tousi affirm that excessive delays without justification from IRCC may warrant judicial intervention. While each case will turn on its facts, this decision from the Court offers a helpful precedent for similarly affected applicants seeking resolution.
In this case, the Principal Applicant applied for permanent residence under the Start-up Visa program on February 10, 2020. At the time of the Court’s decision, more than five years had passed since the application was submitted. IRCC’s published processing time for Start-up Visa applications is currently 40 months, yet the Applicants’ file had been in process for over 62 months—more than two years beyond the standard timeline.
With no reason for the delay and no communication provided by IRCC, the Applicants sought an order of mandamus. An order of mandamus compels the statutory authority—in this case, IRCC—to perform a public legal duty owed to the applicant. That duty, here, is to make a decision on the Applicants’ application for permanent residence. Generally, in order to prove whether a delay has been unreasonable, the applicant must show that the delay has been longer than the nature of the process required, they are not responsible for the delay, and the authority responsible for the delay has not provided satisfactory justification.
In Tousi, the Honourable Madam Justice Turley further clarified the test for mandamus and determined that requiring applicants to establish significant prejudice as an additional factor in proving unreasonable delay is not justified and that it is not required that applicants demonstrate significant prejudice when seeking an order of mandamus. The Honourable Madam Justice Turley concluded that “[t]he requirement for significant prejudice to establish an abuse of process should not be incorporated into the mandamus test. Applicants should only be required to prove the three Conille requirements… to establish unreasonable delay.” Through this, the Court has provided guidance on the test that Applicants need to meet when seeking an order for mandamus and stated that while evidence of prejudice may favour the granting of relief, it is not required.
Additionally, the Honourable Madam Justice Turley clarified that “the clock does not reset when IRCC requests additional information on permanent residence applications.”
This decision also solidified IRCC’s duty to be transparent with applicants during processing including providing information about the ongoing review and any justification for delay.
In conclusion, the Federal Court granted the application and ordered IRCC to make a decision on their permanent residence application within 90 days of the judgement.
This decision provides important guidance from the Federal Court, affirming that IRCC cannot unreasonably delay applicants’ applications. It is a significant development for Start-up Visa applicants, particularly as processing times continue to rise and many applicants face prolonged delays and uncertainty about the future.
Green and Spiegel was pleased to represent the Applicants in this matter and to assist in achieving a favourable outcome. The Court’s ruling offers a crucial avenue for those facing similar issues to seek resolution. For advice on how this decision may impact your application, please contact us.
