Judicial Reviews
Your immigration application has been rejected by IRCC. However, you believe that IRCC’s decision is unreasonable or incorrect…
You may be able to make an application for judicial review at the Federal Court.
What is an application for leave and judicial review at the Federal Court?
A judicial review is a legal process whereby a court will review the actions of a decision-maker.
In immigration law, you can file an application for leave and judicial review of a decision by IRCC, such as a rejected study permit, a rejected work permit, a rejected permanent residence application or another final decision. If you are successful, the decision will be overturned, and another immigration officer will reconsider your application.
The Federal Court will apply the standard of review of reasonableness unless there is a breach of natural justice and/or duty of procedural fairness.[1] This means that the court will review the decision and determine if the decision is reasonable. A reasonable decision is a decision that is internally coherent and based on a rational chain of analysis. It must be justified in relation to the fact and law.
Under the reasonableness standard, a decision-maker is entitled to deference.[2] This means that the Federal Court will not easily overturn a decision or substitute the decision for the decision that it would have made in place of the decision-maker.[3] There is a range of acceptable outcomes, and IRCC’s decision must fall within it.
Strict deadlines to begin a judicial review
There are strict time limits to file an application for leave and judicial review at the Federal Court. When you receive the refusal letter, you have 15 days in the case of a matter arising in Canada. You have 60 days in the case of a matter arising outside of Canada.[4] You are able to seek an extension of time, but there must be special reasons.
How to make an application for judicial review?
You must commence your application for judicial review by making an application for leave at the Federal Court.[5] In plain language, you need to seek permission from the court to start a judicial review, have a hearing and obtain a decision. To obtain leave, you need to prepare an applicant’s record, where you explain why IRCC’s decision is unreasonable or incorrect.
The first step is to file an application for leave and judicial review and serve it to the Department of Justice (DOJ). This is a notice that you will proceed with a judicial review. In reply, the DOJ will provide a notice of appearance. The notice indicates that they intend to respond to the application for leave.
Once this is filed, if no reasons for the decision were received, the Federal Court will make a request to IRCC to obtain the reasons under Rule 9.[6] The Rule 9 disclosures contains the notes of the immigration officer.
Once the Rule 9 disclosure is received, the applicant’s record needs to be perfected. You need to provide a memorandum of argument. This contains legal research and arguments to convince a judge that IRCC’s decision is unreasonable.
IRCC, who will be represented by a lawyer from the Department of Justice (DOJ), will also have an opportunity to provide their own memorandum of argument. After you receive the respondent's record, you will have an opportunity to provide a reply to the DOJ’s memorandum of argument.
As noted above, leave needs to be granted by a judge to proceed with a judicial review. When the applicant's and respondent's records are perfected, a judge will review them on paper. The judge has important discretion in deciding whether or not to grant your application for leave. In most cases, if your application has no chance of success, your application will be dismissed.
The majority of applications for leave are rejected. The Federal Court only grants leave in 20% of applications for immigration matters.[7] If your application is rejected on leave, you cannot appeal it.[8] If your application is granted, a judge will fix a hearing for your application for judicial review. As such, it is important to properly prepare, research and argue the memorandums of argument to be successful on leave.
During the hearing, you will argue that IRCC made an error of fact, law or fact and law. IRCC will argue that there is no error. As a general rule, new evidence is not allowed at the judicial review.
The judge will examine the evidence that was before the immigration officer at the time of the decision. They will further examine the reasons for the decision and how the law was applied.
The court will issue a decision after the hearing. It can take between one to six months depending on the complexity of the matter.
This is a general overview. There are various deadlines and specific rules that must be respected throughout the proceedings. It is recommended to retain an immigration lawyer with litigation experience to research, argue and properly prepare your application for judicial review.
The results of a judicial review
If the Federal Court grants your application for judicial review, IRCC’s decision will be set aside. This means that the rejection will be overturned. Your original application will be returned to IRCC. A different immigration officer will reconsider your application based on the information originally provided at the time of your initial application.
This means that, even if the Federal Court grants your application, your application could be rejected by another immigration officer.
What is the likelihood of success of a judicial review?
This depends on your specific case. While only 20% of immigration applications obtain leave at the Federal Court, some applications reach a settlement before leave. In order words, IRCC consents to the application for judicial review and reassign your immigration application to another immigration officer.
IRCC may have an incentive to reach a settlement. First, it takes time and resources to oppose a judicial review. Second, if you were successful at the judicial review, it may set a precedent for other cases and oblige IRCC to change their procedures for other refusals.
For example, if a judge finds that IRCC made unreasonable findings on the implementation of a program, it may oblige IRCC to change how they assess thousands of applications. In other words, they may settle your case to avoid creating precedents and overhauling a program.
Is a judicial review appropriate?
A judicial review is a last resort. The Federal Court only considers final decisions. For example, if IRCC sends you a letter of procedural fairness, the administrative process is ongoing and a judicial review would not be appropriate. In this example, IRCC has not rendered a final decision and the judicial review process is premature.
The Federal Court will only consider a judicial review when all other avenues have been exhausted. For example, if you have a right to appeal at the Immigration and Appeal Division of the Immigration and Refugee Board, you are expected to seek an appeal at the IAD before filing an application for leave and judicial review.
A judicial review is a review of a decision by a judge. Your initial application is the basis of the judicial review. In most cases, you cannot provide new evidence. If your initial application is weak or it was incomplete, a judicial review may not be appropriate. A judicial review is not an opportunity to provide additional supporting documents.
You may consider strengthening your immigration application and reapply. If you get refused again, file an application for leave and judicial review for the second, stronger application.
Can I file my own judicial review at the Federal Court of Canada?
Yes. The Federal Court has a detailed guide for self-represented litigants. However, it is strongly recommended to have a lawyer as the process can be complicated, and the procedures are specific. As noted above, you will need to prepare an applicant’s record with arguments with legal research. A properly prepared researched and prepared application is crucial to argue your application and obtain leave from the Federal Court.
What is the difference between an appeal and a judicial review?
A judicial review and an appeal have different meanings in law. An appeal can be made to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board in limited cases, such as a refused sponsorship application, residency obligations, removal orders and admissibility.[9] A judicial review can be made for final decisions from the IAD. If the IAD rejects your appeal, you can make a judicial review of that decision. However, as noted above, if you can appeal to the IAD, you must do so before seeking a judicial review.
Can you appeal a decision from the Federal Court?
In most cases, you cannot appeal a decision of the Federal Court. You need to have a certified question to appeal the decision to the Federal Court of Appeal. At the end of the hearing, you and the DOJ will have an opportunity to propose a question to be certified.
Can I get legal costs if I win my judicial review?
In most cases, you cannot obtain legal costs from the Department of Justice if your judicial review is granted. You must have special reasons for the cost, and the burden is high.[10] This means that, if you win, the Federal Court will not order that DOJ pays for your legal fees.
Our Approach
We collaborate with our clients to prepare strong applications. We meet with you to explain the process and develop our approach together.
We negotiate with DOJ throughout the proceedings. If we are able to reach a settlement with DOJ and IRCC, the judicial review can be discontinued, and another immigration officer can reconsider your immigration application. This will minimize legal fees and your application may be processed quicker.
Our reputation is everything. We only proceed with cases that have a reasonable likelihood of success. Book a consultation with a lawyer to assess whether a writ of mandamus is appropriate for you.
We bill on a step-by-step basis. You only pay for the legal services that you need.
Minimum legal fees for judicial reviews
The legal fees[11] are highly dependent on the complexity of the case:
Filing an applicaiton and perfecting the record at the Federal Court | starting from $4000 + 5% GST
Preparing and attending a hearing at the Federal Court | starting from $2500 + 5% GST
It is recommended to be represented by an immigration lawyer with litigation experience. Applications for judicial review can be complicated. The rules and deadlines are very important, and your application can be rejected for not abiding by these rules. Immigration consultants cannot make applications at the Federal Court. If you wish to represent yourself, the Federal Court has resources for self-represented individuals.[12]
How can we help with your judicial review?
Cédric Marin, the author of this blog, is an immigration lawyer. He represents clients at the Federal Court. Previously, he was a law clerk at the Federal Court of Canada. He provided legal advice to a judge on applications for leave and judicial review. He holds a Civil Law degree, Juris Doctor degree and Master of Laws. His Master of Laws focused on decisions by the Federal Court. Previously, Cédric was also a member of the Immigration and Refugee Board and an expert at the United Nations.
List of References
[1] Canada (Minister of Citizenship and Immigration) v Vavilov, 2015 SCC 65 [Vavilov] at para 23.
[2] Vavilov at para 85.
[3] Vavilov at para 125.
[4] Section 72(2)(b) of the Immigration and Refugee Protection Act, SC 2001 c 27.
[5] Section 72(1) of the Immigration and Refugee Protection Act, SC 2001 c 27.
[6] Rule 9 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22
[7] For example, between January 1, 2022 to March 31, 2022, the Federal Court decided 1567 applications for leave, and only granted 301.
[8] Section 72(2)(e) of the Immigration and Refugee Protection Act, SC 2001 c 27.
[9] Section 63 of the Immigration and Refugee Protection Act, SC 2001 c 27.
[10] Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22.
[11] Any disbursements would be added to the legal fees. For example, the Federal Court has a registry fee of $50 to start an application.
[12] If you intend to be self-represented, we offer limited scope retainers to provide strategic advice, draft documents, and answer questions. These services would be charged at an hourly rate.