Judicial review is a legal process allowing individuals to challenge decisions made by immigration officers or the Immigration and Refugee Board (IRB) in federal court.
It is crucial to understand that judicial review differs from an appeal. The court does not reassess the case’s merits or substitute its judgment for the decision-maker’s. Instead, it scrutinizes the legality, fairness, and reasonableness of the decision-making process.
To start a judicial review, you must submit an application for leave and judicial review to the Federal Court.
Initiating a judicial review is complex, so it’s recommended to seek help from an immigration lawyer to navigate the process effectively before the Federal Court.
Grounds for Judicial Review
In the Canadian immigration system, individuals can seek a judicial review for various reasons. The Federal Court may overturn an immigration decision if:
- Error in Law: The law was incorrectly applied to the case.
- Error in Fact: The decision was based on an incorrect interpretation of the case’s facts.
- Error in Law and Fact: Both the law and the facts were misinterpreted or misapplied.
- Unreasonableness: Decisions should be logical, evidence-based, and well-reasoned. Decisions perceived as illogical or unsupported by evidence can be challenged through judicial review.
- Procedural Fairness: Decisions must be made transparently and impartially, allowing individuals to present their case fairly. Lack of fairness or bias can lead to judicial review.
- Jurisdiction: The decision-maker must have the legal authority to make the decision. Judicial review is possible if it’s believed that the decision exceeded or improperly applied authority.
Main Steps in Judicial Review
To initiate a judicial review, here’s a step-by-step guide:
- Prepare the Applicant’s Record: Compile a comprehensive document outlining why you believe IRCC’s decision is flawed. This includes a memorandum with detailed reasoning, legal analysis, affidavits from relevant parties, and any supporting documents that bolster your case.
- Serve the Application: Submit your application for leave and judicial review to the Federal Court and ensure it is properly served on the Department of Justice (DOJ), which represents IRCC. This notifies both the court and the opposing party of your intent to challenge the decision.
- Obtain the Certified Tribunal Record (CTR): The Federal Court requests the CTR from IRCC, which contains all the materials considered by the immigration officer when making their decision. This usually includes notes, forms, and other documents related to your case.
- Finalize the Applicant’s Record: Once you receive the CTR, review it thoroughly and make any necessary additions or revisions to your applicant’s record. This ensures that your case is fully supported and accurately reflects all relevant information.
- Respondent’s Record: IRCC, through the DOJ, submits their own record, including a memorandum of argument outlining their position. You have the opportunity to respond to their arguments and present any additional evidence or counterarguments.
- Leave Decision: A judge reviews both the applicant’s and respondent’s records and decides whether to grant leave for the judicial review to proceed. This decision is crucial, as without leave, your case cannot proceed to a full hearing.
- Judicial Review Hearing: If leave is granted, a hearing is scheduled where both parties present their arguments before the court. This is an opportunity to further elaborate on your case and address any concerns raised by the judge.
- Court Decision: Following the hearing, the court deliberates and issues a decision on the judicial review. This decision can take anywhere from 30 days to 6 months, depending on the complexity of the case and the workload of the court. The Federal Court may grant your request and overturns the IRCC’s decision. As a result, the original decision to reject your application is changed, and your case is sent back to IRCC for review by a different immigration officer. However, it’s important to note that even if the Federal Court approves your application, there is still a possibility that it may be rejected by the new immigration officer during the subsequent review. The outcome of the new assessment will depend on the evaluation of your application based on the information you previously submitted.
FAQs
Should I Opt for Judicial Review?
A judicial review is not always the immediate course of action. It's typically seen as a last resort after exploring all other avenues. For instance, if you're eligible to appeal to the Immigration and Appeal Division (IAD) first, you must seek leave for a judicial review before pursuing an appeal at the IAD.
It's essential to consider a judicial review only when there's a final decision from IRCC that you believe is incorrect. If your case is still ongoing, like when you receive a letter of procedural fairness, the administrative process is ongoing, and pursuing a judicial review would be premature.
How does a judicial review differ from an appeal?
The main difference between a judicial review and an appeal is their focus and outcome:
- Judicial Review: Examines the fairness and legality of the decision-making process, focusing on procedural aspects. If successful, the decision may be quashed or remitted for reconsideration.
- Appeal: Reviews both the process and merits of the decision, with the authority to modify or reverse it, potentially substituting a new decision.
Can I challenge the decision made by the Federal Court?
Yes, you can challenge a Federal Court ruling by seeking permission to appeal to the Federal Court of Appeal. However, grounds for appeal are typically limited to questions of law of public importance or conflicting decisions from other courts or tribunals. If granted leave to appeal, the Federal Court of Appeal will review arguments from both parties and make a decision.
How do I start a court review for an immigration refusal in Canada?
Begin by applying for "leave," which means asking the court's permission to review your case. This step assesses the merit of your case based on potential decision-making errors or significant legal questions.
What are the deadlines for submitting a Notice of Application for Judicial Review?
For decisions made within Canada, you have 15 days to submit your application. For decisions made outside Canada, the deadline extends to 60 days.
What are the possible outcomes after a Judicial Review?
Two main outcomes are possible:
- Settlement: The Department of Justice may opt for settlement if they see a high chance of the original decision being overturned. This action sends the application back for a new review without proceeding to a hearing.
Court Decision: If the case goes to hearing and the judge finds the original decision flawed, the refusal is overturned, and the case is sent back for reconsideration. If the refusal is upheld, the process concludes with no further judicial recourse.
What is the typical timeline for a Judicial Review application?
If settled by the Department of Justice, it can take 4 to 8 weeks. If a hearing is needed, it may take up to 6 months or more.
Why is it advisable to seek assistance from an immigration lawyer for a judicial review?
Initiating a judicial review is complex, and an immigration lawyer can guide individuals through the process effectively. They assist in preparing a compelling case, ensuring all legal procedures are followed, and presenting the case before the Federal Court.
What happens if the Federal Court denies permission (leave) for a judicial review?
If leave is denied, the individual cannot proceed with the judicial review. It's a crucial step, and without permission, the case would not be heard. However, other legal avenues might still be explored depending on the circumstances
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