Many immigration and refugee decisions made by Immigration, Refugees and Citizenship Canada (“IRCC”), the Canada Border Services Agency (“CBSA”), or the Immigration and Refugee Board (“IRB”) may be challenged before the Federal Court through an Application for Leave and Judicial Review.
A judicial review is not a new application or a new hearing. The Federal Court does not normally reconsider the case from the beginning or substitute its own decision on the facts. Instead, the Court reviews whether the decision-maker acted fairly, reasonably, and in accordance with the law.
Gerami Law PC represents clients in complex judicial review matters involving refused immigration applications, refugee decisions, inadmissibility findings, procedural fairness issues, delays, and other immigration-related decisions.
What Is a Judicial Review?
A judicial review is a legal process through which the Federal Court examines whether an immigration or refugee decision was legally and procedurally proper.
The Court may assess issues such as:
- whether the decision was reasonable;
- whether important evidence was ignored or misunderstood;
- whether the decision-maker applied the correct legal test;
- whether procedural fairness was respected; and
- whether the decision-making process was transparent, justified, and intelligible.
The Supreme Court of Canada has confirmed that administrative decisions must be based on a rational chain of analysis and be justified in relation to the facts and law. Canada (Minister of Citizenship and Immigration) v. Vavilov
Immigration Decisions That May Be Judicially Reviewed
Judicial review may be available for a wide range of immigration and refugee decisions, including:
- refused study permits;
- refused work permits;
- refused visitor visas;
- refused permanent residence applications;
- refused humanitarian and compassionate applications;
- refused refugee claims or refugee appeals;
- refused PRRA applications;
- sponsorship refusals;
- inadmissibility findings;
- removal orders and enforcement decisions;
- citizenship decisions; and
- certain procedural fairness or eligibility determinations.
In many cases, judicial review is only available after all appeal rights have been exhausted.
The Judicial Review Process
Judicial reviews under the Immigration and Refugee Protection Act are generally a two-stage process:
1. the leave stage; and
2. the judicial review hearing stage.
At the leave stage, the Court reviews the written materials filed by the parties to determine whether the case raises an arguable issue. If leave is granted, the matter proceeds to an oral hearing before the Federal Court. The Federal Court explains that leave is required before the Court will proceed to a judicial review hearing.
Strict deadlines apply. In many immigration matters, an application for leave and judicial review must be commenced within:
• 15 days for decisions made in Canada; or
• 60 days for decisions made outside Canada.
The process may involve:
- filing the Application for Leave and Judicial Review;
- obtaining written reasons or tribunal records;
- preparing affidavits and legal memoranda;
- responding to submissions from the Department of Justice; and
- attending an oral hearing if leave is granted.
Judicial Review Is Not a New Application
A judicial review generally focuses on the evidence that was before the original decision-maker. It is not usually an opportunity to submit entirely new evidence or substantially rebuild the application after a refusal.
However, in some situations, additional evidence may be admissible, particularly where procedural fairness issues arise or where evidence is necessary to explain the context of the decision-making process.
Strategic assessment is important to determine whether judicial review, reconsideration, reapplication, or another remedy may be the strongest option.
Settlements and Redeterminations
In some cases, the Department of Justice may agree to resolve the matter without a full hearing where there are significant concerns with the decision. This can result in the matter being returned for redetermination by a different officer or tribunal member.
Where the Federal Court grants judicial review after a hearing, the Court will generally send the matter back for reconsideration by a different decision-maker rather than granting the immigration application directly.
Stay of Removal Motions
Some judicial review matters involve urgent removal proceedings. In appropriate cases, it may be necessary to bring a motion requesting that the Federal Court temporarily stay the removal while the judicial review is pending.
Stay motions are urgent proceedings involving strict timelines and detailed evidentiary requirements.
How We Can Help
Gerami Law PC assists clients with:
- judicial reviews before the Federal Court;
- preparation of Applications for Leave and Judicial Review;
- urgent stay of removal motions;
- review of refusal reasons and tribunal records;
- preparation of affidavits and legal memoranda;
- procedural fairness issues;
- litigation strategy and settlement discussions;
- complex refugee and immigration litigation; and
- strategic advice regarding reapplications, reconsideration requests, appeals, and parallel remedies.
Immigration litigation is highly technical and time-sensitive. Early legal advice is important, particularly where strict deadlines or removal proceedings are involved.