The Federal Court Appeal Judicial Review of Immigration Decisions Process
What do you do when you receive a negative decision from the Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA) and there is no prescribed appeal mechanism?
The answer is usually an application to Federal Court for Judicial Review.
A Judicial Review by the Federal Court is usually not about re-assessing the facts or merits of an immigration decision. Instead, it focuses on how the decision was made. Whether the process fair, whether the correct procedures were followed and whether the right legal principles were applied.
There are two standards that the court can adopt when reviewing a decision. They are:
- The Reasonableness Standard: Under this standard the court determines whether the decision under review was reasonable based on the facts and circumstances
- The Correctness Standard: Under this standard the court goes on to determine not just whether the decision was reasonable but also whether the decision reached was the correct one.
Jurisdiction of the Federal Court
The Federal Court has the authority to review decisions made by federal boards, commissions, and tribunals, including those related to immigration. It can review decisions such as:
- Refusals of Permanent Residency Applications: Including those under Express Entry, Provincial Nominee Program, Family Class, etc.
- Refusals of Temporary Residency Applications: Including visitor visas, work permits, and study permits.
- Inadmissibility Decisions: Including decisions based on security, human rights violations, criminality, and misrepresentation.
- Refugee Decisions: Including negative Refugee Protection Division decisions and Pre-Removal Risk Assessments.
The Federal Court Judicial Review Process
- Application for Leave: Before a full review, the Applicant must first seek the Court's permission or “leave” to apply for judicial review. The application for leave is a “paper-based” process. There is no oral hearing. This means the Court will only review written arguments before deciding if the case is strong enough for leave to be granted. The process usually takes several months. It is a two-step process. If the Court doesn't grant leave, it won't give any reasons and there is no right to appeal. If the Court makes an order granting leave, then the Court will set a hearing date for oral arguments to be made, usually within 90 days.
- Submission of Documentation: The Applicant usually has to provide the Court with the decision record – essentially all materials the decision-maker used to reach the conclusion. There are rules requiring the decision maker to provide written reasons for the decision to the Applicant and a request for written reasons is usually requested through the Federal Court Registry when filing the Application for Leave and Judicial Review.
- Judicial Review Hearing: During the review hearing both sides get to present their arguments. Unlike some court hearings, witnesses are not typically called the decision is made based on affidavit evidence and the legal arguments made by the parties.
- Court’s Decision: After the hearing, the Court can confirm the decision or quash (cancel) it in which case the Court would usually send it back to be re-examined by a different decision-maker.
The Federal Court's judicial review process is a safeguard ensuring that decisions affecting members of the public including immigration applicants are reasonable, made through a fair process and based on the relevant rules/legislation.
The process can be complex with strict deadlines, so it is recommended that applicants consider retaining the services of a knowledgeable immigration lawyer to maximize their chances of success.
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Disclaimer: This content aims to provide general information and does not constitute legal advice. For specific inquiries or assistance, please consult a legal professional.