A Look at The Judicial Review Process and How Immigration Lawyers in Canada Can Help

If you have received a negative decision on your immigration, refugee, or citizenship matter, a Canadian immigration lawyer can help. An immigration lawyer will guide you through the application process for a judicial review to examine the reasons for the negative decision. In turn, this could potentially overturn the decision, and send the matter back for a re-determination.

The judicial review application process has two stages: the judicial review leave application and the judicial review hearing. The application will only proceed to a hearing if the leave application has been granted by a judge of the Federal Court, based on whether the Applicant has presented an arguable case.

Review of Negative Decision

The first step in the judicial review process is to provide your lawyer with all pertinent information and documents regarding your negative decision. Be sure to include your notification of the negative decision from immigration officials.

Your immigration lawyer will review the reasons for the negative decision and determine if the decision can be challenged as being unreasonable, incorrect, or procedurally unfair. The decision maker may have also failed to take into account the rights and values enshrined in the Canadian Charter of Rights and Freedoms in rendering a decision.

Some of the main reasons for allowing an application for judicial review include whether:

(a) The decision-maker made an error in law;

(b) The decision-maker misapprehended the facts, or appears to have ignored a fact of fundamental importance;

(c) The decision-maker violated a principle of natural justice, or failed to observe procedural fairness;

(d) The decision-maker’s decision goes beyond the authority conferred upon the decision-maker by the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations.

Timelines for Judicial Review Leave Applications

According to section 72 of the Immigration and Refugee Protection Act, anyone seeking the judicial review of a decision, determination, order made, a measure taken, or a question raised must first seek leave of the Court.  For the purposes of calculating the time limit within which the application for leave and judicial review must be commenced, an officer’s decision in a matter arising in Canada must be commenced within 15 days after the date on which the person concerned is notified of, or otherwise becomes aware of, the matter.

However, the review of an officer’s decision in a matter arising outside Canada must be commenced within 60 days after the date on which the person concerned is notified of or otherwise becomes aware of the matter. According to the Regulations in the absence of proof to the contrary, a person is deemed to be notified of a decision seven days after the day on which notice of the decision was sent to the person, unless the decision was made in their presence.

Once reviewed, if there is an arguable case, your Canada immigration lawyer will advise you on the chances of success at the hearing.  If you decide to proceed, your lawyer will prepare your application record, including your affidavit together with exhibits and a Memorandum of Argument.

Once the judge reviews the Application Record and is satisfied that the Applicant has raised a serious or arguable issue, leave for judicial review of the decision will be granted. If leave is granted, the hearing must be held not earlier than 30 days and not later than 90 days of the date granting leave.

Additional Requirements for Filing a Leave Application

Your leave application must:

  • Include the specific relief you are seeking for judicial review, if you are granted leave;
  • Indicate if you have not received the reasons for your negative decision in writing, so the reasons can be sent to you, to the Court, and to the Respondent;
  • Include a fee payment of $50 at the time of filing your leave application—payment can be made via Visa, MasterCard, or American Express credit card, cash, debit, or a personal cheque or money order made out to The Receiver General of Canada;
  • Include copies of your leave application certified by the Registry; upon certification, the Registry will return the copies to you (to be served to respondents) and keep the original leave application.

Application for Judicial Review

The hearing will determine the outcome of the application for judicial review. At the hearing, your immigration lawyer will present your case with strong arguments to persuade the court. If your lawyer successfully argues your case, your negative decision can be set aside and your immigration matter will be returned to immigration officials for reconsideration.

Although it may seem like a difficult and stressful process, your immigration lawyer will find every arguable detail in your case, file documents, and present your case in court on your behalf, so you will have the best chance to appeal your negative immigration decision.