Receiving a negative Canadian immigration decision can be stressful, but depending on the circumstances, there may be legal options available. One potential option is to make an application for leave and for judicial review at the Federal Court of Canada.
This is a two-part process whereby a person is able to appeal the refusal of an immigration application or administrative tribunal. Filing an application for leave allows the Federal Court to review the reasonableness and/or fairness of a decision made by IRCC or CBSA and determine whether there is a basis for the Court to intervene. If the Court determines that there is a basis for intervention, they will set the matter down for Judicial Review (hold a hearing before the Federal Court).
What Is Judicial Review?
Under section 72 of the Immigration and Refugee Protection Act (IRPA), judicial review of a matter under IRPA is commenced by making an application for leave to the Federal Court.
Leave means permission from the Court for the judicial review application to proceed. The Court first considers the application for leave based on the materials filed. If leave is granted, the matter proceeds to a judicial review hearing. If leave is refused, the judicial review does not proceed.
Importantly, IRPA also provides that an application for judicial review may not be made until any right of appeal provided by IRPA has been exhausted i.e. to a relevant administrative tribunal such as the Refugee Appeal Division or the Immigration Appeal Division.
What Does the Federal Court Review?
The issues considered depend on the particular case. An applicant may challenge the reasonableness of a decision or argue that the decision-making process was procedurally unfair.
The Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, established the framework for substantive review of administrative decisions. When a court reviews the merits of an administrative decision, reasonableness is presumed to be the applicable standard, subject to recognized exceptions.
Reasonableness review considers both the reasoning process and the outcome. The reviewing court considers whether the decision is justified, transparent and intelligible in light of the relevant factual and legal constraints.
Procedural fairness is a distinct consideration and is context-specific. Depending on the circumstances, an applicant may raise fairness concerns about the process through which a decision was reached.
What Happens If Judicial Review Is Successful?
A successful judicial review does not normally result in the Federal Court approving an immigration application or substituting the decision of the original decision maker, with their own.
If the Court grants the application, the refusal is set aside and the matter is sent back for reconsideration by a different decision maker. The Applicant is often given the opportunity to provide updated submissions to the new officer and it is possible that the new decision maker considers the content of the decision of the Federal Court.
Are There Deadlines for Judicial Review?
Yes. The deadlines can be very short.
Under section 72(2)(b) of IRPA, an application for leave and for judicial review must be filed with the Federal Court within 15 days for a matter arising in Canada or within 60 days for a matter arising outside Canada. The period is calculated from the day after the applicant is notified of or otherwise becomes aware of the refusal/adverse decision.
A Federal Court Judge may allow an extension of time for special reasons, but an extension should not be assumed.
Conclusion
Judicial review can provide an important legal remedy when there are concerns about an immigration decision. The role of the Federal Court is to review what material was before the decision maker at the time that the decision was made, and to decide if on that basis the decision was fair and/or reasonable.
Whether judicial review is appropriate depends on the decision, the grounds for challenging it, the availability of any statutory appeal and the circumstances of the individual case. Given the strict deadlines that apply, applicants should seek legal advice promptly after receiving a negative decision.
Contact Jain Immigration Law
If you have received a negative Canadian immigration decision and would like to understand your legal options, Jain Immigration Law can review the circumstances of your case and advise you on whether judicial review or another legal remedy may be available.
Contact Jain Immigration Law to schedule a consultation with a member of our legal team.
Jain Immigration Law
Phone: +1 (416) 548-5533
Email: [email protected]
Website: www.jainimmigrationlaw.com