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Federal Court Judicial Reviews in Canadian Immigration

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A founding partner of Abramovich & Tchern and a skilled litigator, Lev focuses exclusively on immigration and refugee law. His immigration practice is focused on complex corporate and personal immigration and refugee law matters.
a man reads through paperwork

On a judicial review, the Federal Court examines the process that led to the initial decision and determines if this process was fair and reasonable. A judicial review is not an appeal, and in a review, the Federal Court cannot substitute its decision to replace the initial decision made by the original decision maker (i.e. the immigration officer or the Immigration and Refugee Board). Generally speaking, unless the fresh evidence addresses procedural fairness or jurisdiction related issues, the judicial review is limited to the evidentiary record that was before the decision maker.

If the Federal Court determines that the process was not reasonable, the Federal Court will send the case back to the decision maker to have a different individual consider the matter. The new decision maker will be bound by the Federal Court’s reasoning and analysis on review. In other words, if the Court addresses the key factors in a favourable fashion, the immigration or visa officer’s hands are bound by the analysis.

In exceptional circumstances, the court may issue specific instructions to the new decision maker with respect to how the matter is to be considered. This is referred to as a “directed verdict.” The threshold for the Federal Court issuing a directed verdict is very high.

What Is The Process For a Judicial Review

The judicial review is a two-stage process consisting of:

(1) the Leave Stage;

and (2) the Judicial Review (if leave is granted).

The Leave Stage

In the first stage, called the “Leave Stage”, the Federal Court reviews the documents regarding your case. There are four parts to the Leave Stage:

  1. Filing a Notice of Application which sets out the grounds for the judicial review and the relief sought. It is important to be mindful of timelines with respect to commencing a judicial review application. Timelines vary depending on whether the decision was made (or is deemed to be made) inside or outside of Canada.
  2. Filing and serving the Applicant’s Record. This must be done within 30 days of the receipt of the full reasons or if the reasons were received prior to the issuance and filing of the notice of application, within 30 days of the same.
  3. Filing and serving the Respondent’s Record. Within 30 days of receiving the Applicant’s Record, the Respondent must file a Respondent’s Record, including their arguments as to why leave should not be granted in the case.
  4. Reply by the Applicant – within 10 days of receiving the Respondent’s Record, the Applicant has the opportunity to file further arguments in the form of a Reply.

After the above documents have been properly served and filed, a judge of the Federal Court will consider the application for leave. Generally, the leave stage is done on paper and does not require Court appearances. It may take several months for the Court to make a decision.

Resolution without a Hearing

In some cases, we are able to resolve the matter on consent with the Minister after the filing of the Application Record, which avoids a hearing. In other cases, we are able to negotiate settlements which include instructions to the next visa officer which greatly increases the chances of a future approval.

The Judicial Review and Hearing

If the case is not settled and leave is granted, the Federal Court will set out all of the deadlines for filing the next set of required documents, including any additional affidavits and written arguments. The Federal Court will also set a date for oral arguments to be made by counsel in front of a judge. A hearing will take place with the decision being reserved in most cases, and issued a few weeks or months after the hearing.

Lev Abramovich

A founding partner of Abramovich & Tchern and a skilled litigator, Lev focuses exclusively on immigration and refugee law. His immigration practice is focused on complex corporate and personal immigration and refugee law matters.