Federal Judicial Review

Under Canada’s immigration law, you can ask the Federal Court of Canada to review decisions related to immigration. A lawyer must apply for judicial review on your behalf.

Review by the Federal Court is a two-stage process. In the first stage, which is known as the “leave” stage, the Court reviews the documents related to your case. You must show the Court that an error was made in the decision, or the decision was not fair or reasonable.

If leave is given, this means the Court has agreed to examine the decision in depth. At this second stage, called “application for judicial review,” you and your lawyer can attend an oral hearing before the Court and explain why you believe the original decision was wrong.

1. Who has the right to seek judicial review?

The IRPA provides two levels of review of decisions made under the Act: review by way of statutory appeal to the IAD and review by the Federal Court.

Pursuant to section A63 (as limited by section A64) sponsors, visa holders, permanent residents and protected persons have a right to appeal adverse decisions to the IAD. Included in these provisions is the Minister of PSEP’s right to appeal to the IAD a decision made by the Immigration Division (ID) at an admissibility hearing [A63(5)].

In all other cases, where no statutory right of appeal exists or those rights have been exhausted, there is a right to seek judicial review of any decision made pursuant to the IRPA by filing an application for leave and judicial review to the Federal Court pursuant to A72(1).

2. Grounds for Judicial Review:

A judicial review application is different from an appeal. On an appeal, the judge decides the issues based on what the judge determines to be the correct answer when the law is applied to the facts of the case. Appeals are therefore concerned with getting the right decision. Judicial review is concerned with the manner in which a decision is made. For example, a judge may disagree with an officer’s decision, but if the judge is satisfied that the officer proceeded fairly, understood the facts of the case, and acted within the authority of the IRPA, the judge may dismiss the application for judicial review.

In simplified terms, the main reasons for allowing an application for judicial review are:

• The decision-maker made an error in law, whether that error is obvious or not.
• The decision-maker got the facts wrong at a fundamental level, or appears to have ignored a fact of fundamental importance.
• The decision-maker violated a principle of natural justice or failed to observe procedural fairness.
• The decision-maker’s decision goes beyond the authority conferred upon the decision-maker by the IRPA and the Regulations [section 18.1(4), Federal Courts Act].

3. When to file Judicial Review?

Applications must be filed within 15 days if decision/order/act/omission occurred in Canada or within 60 days if occurred outside Canada.