If a negative decision is rendered in a matter related to immigration, you may be eligible for judicial review of that decision. When an applicant is seeking the right to a judicial review, they are requesting that the Federal Court examines the procedural fairness of the decision – that is, the steps that were taken which informed the decision’s reasoning – and its substantive fairness, which refers to the jurisdiction and authority of the decision-maker, as well as whether or not it was grounded in relevant information or if the decision itself was made in accordance with appropriate policy. Applicants can seek judicial review under both the Immigration and Refugee Protection Act and the Citizenship Act.
Section 72(1) of the Immigration and Refugee Protection Act allows for a judicial review by the Federal Court “with respect to any matter – a decision, determination or order made, a measure taken or a question raised”. The applicant must take care that all remaining appeal rights under the Immigration and Refugee Protection Act must have been exhausted. Refugee claimants, for instance, have to first exhaust their right to appeal to the Refugee Appeal Division prior to seeking a judicial review application with the Federal Court. For a decision arising in Canada, the applicant must file an Application for Leave and for Judicial Review within 15 days of notification of the decision or order.
Under the Citizenship Act, applicants may only seek relief through judicial review and must instead make an application for leave within 30 days of the date that they have received notice of a decision. The minister of the IRCC is considered the respondent in these applications.
Federal Court judges are not in the practice of accepting or reviewing new evidence as part of a judicial review application and must strictly assess the original evidence; as a result, a hopeful applicant generally cannot submit new evidence with the hopes of receiving a different decision or quashing an incorrect decision. Judges can only rely upon the record which existed before the decision-maker and do not have access to an ongoing record. Judges can only determine whether or not the decision-maker made an error procedurally, substantively, or both in rendering their decision.
When a decision is rendered for an application to leave, no requirement exists for one to be physically present in court. If the leave is denied, written notice will be sent by the Federal Court to both the applicant and the respondent, and there are no further steps to be taken for the applicant.
If leave is granted, a judge issues an order which includes all relevant information concerning the oral hearing of the judicial review, including time limits for filing material and transcripts. Hearings, once scheduled, are held in the city closest to the applicant. A hearing must be held no sooner than 30 days after leave is granted and no later than 90 days after leave is granted, pursuant to section 74 of the Immigration and Refugee Act; this time limit also applies for any matters which concern citizenship.
To reiterate: the primary purpose of any judicial review is to hold a decision-maker to a fair and transparent standard and ensure that the decision was procedurally sound, that the facts of the case were readily understood, and that the decision-maker acted within the limits of their relevant statutory authorities. They might find that a decision-maker acted beyond their jurisdiction, that they failed to observe principles of natural justice, that they perjured evidence, that they erred in law when coming to a decision, or that they acted in any way that was contrary to the law.
Generally speaking, if a positive decision is found – that is, if the judicial review application has merit – then judges generally will only quash the decision and order a redetermination. Judges may offer insights into how that redetermination should be handled, but they will generally not substitute the offending decision with a decision of their own. Judges may also choose to uphold a decision.
At Lakin Afolabi Law, we can help you review decisions that are procedurally or substantively unfair and hindering you from accomplishing your goals in Canada. We will work with you to ensure any judicial review application has the best chance for success.