Judicial Review in Canadian Immigration

Judicial review is a process that allows individuals to challenge decisions made by immigration authorities (such as the Immigration and Refugee Board, Canada Border Services Agency, or immigration officers) in a court of law. The goal is to determine whether the decision-making process was fair, legal, and reasonable according to Canadian law. Judicial review focuses on the process of the decision rather than the merits of the decision itself.

In Canada, judicial review of immigration decisions is carried out by the Federal Court of Canada.

What is Judicial Review?

Judicial review is a legal procedure that allows the Federal Court of Canada to assess the legality of decisions made by Canadian immigration authorities. It is not an appeal; the Federal Court does not re-decide the case or consider new evidence. Instead, it looks at whether the immigration authorities made a legal error or acted in an unreasonable or unfair manner.

Grounds for Judicial Review

You may apply for a judicial review of an immigration decision if you believe the decision-making process involved:

1. 1. Errors of Law:
      
      • • If the immigration authorities misinterpreted the law, applied the wrong legal standard, or made a legal mistake in their decision.

1. 1. Errors of Fact:
      
      • • If the authorities made a factual mistake that significantly affected the decision (e.g., relying on incorrect facts or misunderstanding the evidence presented).

1. 1. Procedural Unfairness:
      
      • • If you were denied a fair process or treated unfairly during the immigration decision-making process (e.g., not being given enough time to present your case or not being allowed to submit critical evidence).

1. 1. Unreasonable Decisions:
      
      • • If the decision made by the immigration officer, board, or tribunal was unreasonable. This may occur when the decision is not supported by the evidence, or it is so unreasonable that no reasonable decision-maker could have made it.

1. 1. Bias:
      
      • • If you believe the decision-maker was biased or had a conflict of interest that impacted their ability to make a fair decision.

1. 1. Failure to Consider Relevant Evidence:
      
      • • If the decision-maker ignored or failed to consider important information or evidence that was relevant to your case.

1. 1. Excessive Delay:
      
      • • If there was unreasonable or unjustified delay in the processing of your application or the hearing of your case.

When to Apply for Judicial Review

You can apply for a judicial review in the Federal Court of Canada when:

• • You have received an immigration decision from a visa officer, the Immigration and Refugee Board (IRB), the Immigration Appeal Division (IAD), or any other immigration-related decision-making body.

• • You believe that the decision was made in error, unfairly, or unlawfully.

Judicial review is available for the following types of decisions:

• • Refugee claims rejected by the Immigration and Refugee Board (IRB).

• • Permanent residence refusals or visa rejections by immigration officers.

• • Removal orders (orders requiring someone to leave Canada).

• • Work or study permit refusals.

• • Inadmissibility findings (if you’re found inadmissible for entry or stay in Canada).

• • Sponsorship decisions (e.g., family sponsorship denials).

How to Apply for Judicial Review

Step 1: Understand the Deadline

• • Time Limit: You must apply for a judicial review within 15 days from the date you receive the decision. This is a strict deadline, and the court may not accept applications after this period unless you can show an exceptional reason for missing the deadline.

• • If you live outside of Canada, you have 60 days to apply for judicial review.

Step 2: File the Application

• • Court Form: You need to fill out a Notice of Application for Judicial Review. This is the official document that begins the process of judicial review.

• • Supporting Documents: You must submit supporting documents, such as:
    
    • • A copy of the decision you want to challenge.
    • • Any other documents relevant to your case (e.g., application forms, letters, notices).

• • Fee: A fee must be paid when filing the application. Check the Federal Court website for up-to-date fees.

Step 3: Serve the Application

• • Once you file the application, you must serve a copy of it to the Attorney General of Canada (the respondent). This is typically done by mailing or personally delivering the documents.

Step 4: Court Hearing

• • After your application is filed and served, a judge from the Federal Court will review your case. Usually, the judge will make a decision based on written submissions (documents and evidence presented by both parties).

• • In some cases, the court may schedule a hearing if it believes oral arguments are necessary.

• • The judge will evaluate whether the decision-making process was lawful and fair.

Step 5: Decision

The judge has several options after reviewing the case:

• • Allow the judicial review: If the judge finds that the decision was made in error or unfairly, they may:
    
    • • Quash (cancel) the decision and send the case back to the immigration authority for reconsideration.
    • • Order the immigration authority to reconsider the decision or issue a new decision.
    • • In some cases, the judge may make their own decision, but this is rare.

• • Dismiss the application: If the judge determines that the decision was made lawfully and reasonably, they will dismiss the application for judicial review.

What Happens After Judicial Review

• • If the judge quashes the decision, the immigration authority must reconsider the case in accordance with the court’s findings.

• • If the judge dismisses the review, the original decision will stand, and the individual may have no further options (unless there are grounds for further legal action, such as appealing the judicial review decision).

What Happens If You Are Not Satisfied with the Judicial Review Outcome?

If the judicial review results in an unfavorable decision (i.e., the court dismisses your application for judicial review), you may still have some options:

1. 1. Appeal the Decision: You may be able to appeal the Federal Court’s decision to the Federal Court of Appeal if you believe there were further legal errors.

1. 1. Reapply: In some cases, you might be able to submit a new application (e.g., if new evidence has emerged that wasn’t available at the time of the original decision).

1. 1. Seek Legal Counsel: It’s advisable to consult with an immigration lawyer or professional to explore other options that may be available.

Judicial Review vs. Appeal

• • Judicial Review: The Federal Court does not re-decide the case or reconsider the facts. It only reviews the process and whether the immigration authority made legal errors in applying the law or in the decision-making process. The court is concerned with fairness and reasonableness.

• • Appeals: An appeal process involves reviewing the merits of the case itself (the facts) and making a new decision. For most immigration decisions, appeals are handled by the Immigration Appeal Division (IAD) or Refugee Appeal Division (RAD).

Conclusion

Judicial review is a crucial mechanism in Canadian immigration law that allows individuals to challenge immigration decisions made by authorities if they believe the process was flawed or unlawful. It is not about re-deciding the case but rather ensuring that the decision was made according to the law and in a fair manner.

If you believe that an immigration decision was made in error, unfairly, or unlawfully, judicial review may provide you with an opportunity to seek a remedy. Given the strict deadlines and complex legal nature of judicial review, it is advisable to consult an immigration lawyer or professional to guide you through the process effectively.

Are You Considering Filing Judicial Review of Your Visa Refusal?

You can contact us for a review of your visa file. We will advise you whether you should may file Judicial Review or reapply with our guidance. 

We have our panel Canadian Immigration Lawyer who handle all our clients’ JR applications.