Judicial Review for immigration refusals
Reine, a citizen of Togo, recently applied for immigration to Canada. However, the immigration officer refused her application. Reine believes the decision was a mistake as she met all the requirements. Consequently, she hired a lawyer to file a judicial review application for her immigration application refusal.
Table of contents
What is judicial review?
Judicial review (JR) means asking a Federal Court judge to decide if the immigration authorities have done their job correctly. Therefore, the focus of JR is the actions taken or not taken by them. In a refusal situation, if the judge allows the judicial review, the authorities must reopen the application and review it again. Unfortunately, JR does not guarantee the approval of the application. It only reopens the application for further review. Sometimes you win the JR, but the immigration authorities refuse the application again.
You could use the judicial review for various reasons, but this article focuses on application refusals.
Right to appeal for refusals
Sometimes when you face a refusal, you may appeal the case. The Immigration Appeal Division (IAD) of the Immigration Refugee Board of Canada (IRB) conducts those appeals. If you win the appeal, the IAD adjudicator, aka member, will approve your application in most circumstances. Therefore, an appeal is a better option than a judicial review. I have another article that explores appeal options.
You may not file for judicial review if you have the right to appeal. However, there is an exception to this rule. Imagine you are sponsoring a family member. However, IRCC believes the person you are sponsoring is not a family member and refuses the application. In those circumstances, if you appeal the decision, IAD may refuse the appeal for lack of jurisdiction. Therefore, you may skip the appeal process and apply directly for a judicial review.
Note to practitioners: See paragraphs 14 and 33 to 38 of Habtenkiel v. Canada (Citizenship and Immigration), 2014 FCA 180 (CanLII), [2015] 3 FCR 327, https://canlii.ca/t/g87wk.
The judicial review timelines
For inside Canada decisions, you have 15 days from the date of receiving the decision to file a JR. However, the deadline for outside Canada cases is 60 days. If you intend to file a judicial review application, you must talk to an immigration lawyer as soon as you receive the decision. Nonetheless, the Court sometimes agrees to extend the deadline [A72(2)(c)].
In terms of processing times, it is almost impossible to predict. We recently had a JR hearing after four years of the initial filing. To be fair, the hearing covered more than 100 people. However, typical individual hearings usually conclude in less than a year.
The judicial review process
A typical judicial review process includes the following steps:
- You apply for leave and judicial review. Of course, you must pay the filing fee, which is currently $50.
- You will most likely attend an oral hearing if the judge grants leave. However, sometimes the immigration authorities settle with you, and there is no need for a hearing. If the judge dismisses leave, you will lose the case without the right to appeal.
- At the hearing, the most likely outcomes are the following:
- The judge dismisses judicial review. Therefore, the authorities won’t reopen the application.
- The judge allows judicial review. Consequently, the immigration authorities will reopen the application.
- A typical judicial review does not grant the right to appeal. However, if the Federal Court judge certifies a serious question of general importance, you may file an appeal with the Federal Court of Appeal.
The exact process could vary for different cases.
Request for reconsideration instead of a judicial review application
While you may request reconsideration, the success rate is meagre. Therefore, please do not use it to replace judicial review. You may submit a reconsideration request a few days before initiating the JR process or even concurrently.
Let us help!
Only a lawyer may assist you with judicial review cases. I am an immigration consultant and can only help you with IAD cases and other non-court matters. If you are seeking assistance with those issues, please fill out the following form. Alternatively, you may book a consultation session or fill out our assessment form. Moreover, I offer mentorship sessions for licensed practitioners.
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Al ParsaiAl Parsai, LLM, MA, RCIC-IRB
Regulated Canadian Immigration Consultant
Adjunct Professor – Queen’s University – Faculty of Law
Ashton College Instructor – Immigration Consulting
Author – 88 Tips on Immigration to Canada
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