Judicial Review of Immigration Decisions at Federal Court

What Is Judicial Review?

Judicial review is a legal process through which the Federal Court of Canada reviews decisions made by immigration officers, the Immigration and Refugee Board (IRB), and other decision-makers under Canada's immigration system. Unlike an appeal, a judicial review does not re-examine the facts of your case. Instead, the court assesses whether the decision was made fairly, reasonably, and in accordance with the law.

Judicial review is often the last option available to challenge an immigration decision. It is a more formal and legally complex process than an IRB appeal, and it is essential to understand how it works before proceeding.

When Can You Seek Judicial Review?

You can seek judicial review of most immigration decisions, including:

• Refusal of a visa, work permit, study permit, or permanent residence application
• Decisions by the IRB (including the IAD, RAD, RPD, and ID)
• Decisions on humanitarian and compassionate (H&C) applications
• Refusal of a Temporary Resident Permit (TRP) or criminal rehabilitation application
• Pre-Removal Risk Assessment (PRRA) decisions
• Citizenship decisions
• Detention review decisions

However, judicial review is not available for every type of decision. In some cases, you must first exhaust other remedies, such as appeals to the IAD or RAD, before seeking judicial review.

See also: How to Apply for Canadian Permanent Residence

See also: Canada Student Visa Guide

Grounds for Judicial Review

The Federal Court does not simply substitute its own judgment for the decision-maker's. Instead, it reviews the decision on specific legal grounds:

Reasonableness

The most common standard of review is reasonableness. The court asks whether the decision falls within a range of possible, acceptable outcomes that are defensible on the facts and the law. A decision is unreasonable if:

• It fails to account for key evidence in the record
• It is internally inconsistent or contradictory
• It applies the wrong legal test or misinterprets the law
• The reasons provided do not logically support the conclusion

Procedural Fairness

Every person affected by an immigration decision is entitled to procedural fairness. This includes:

• The right to know the case against you
• The right to be heard and to respond to concerns
• The right to an unbiased decision-maker
• The right to receive reasons for the decision

If any of these procedural rights were violated, the court may set aside the decision regardless of its outcome.

Jurisdiction

The court will also review whether the decision-maker acted within their legal authority. If a decision-maker exceeded their powers or failed to exercise them properly, the decision may be overturned.

The Judicial Review Process: Step by Step

1. File for Leave: Unlike a regular court case, judicial review in immigration matters requires you to first seek 'leave' (permission) from the Federal Court. You must file an Application for Leave and for Judicial Review within strict timelines:
   • 15 days for decisions made in Canada
   • 60 days for decisions made outside Canada
   These deadlines are counted from when you received the decision and are strictly enforced.
2. Serve the Application: After filing, you must serve the application on the Attorney General of Canada (the respondent) and any other relevant parties.
3. File the Applicant's Record: This is your main submission and includes your affidavit (a sworn statement setting out the facts), the decision under review, any relevant correspondence, and a memorandum of argument (your legal arguments).
4. Respondent's Record: The respondent (the government) will file their record in response, including the Certified Tribunal Record (CTR), which contains all the documents that were before the original decision-maker.
5. Leave Decision: A Federal Court judge reviews the application for leave on paper (without a hearing) and decides whether the case raises a 'fairly arguable case.' If leave is granted, the case proceeds to a full hearing. If leave is denied, the case ends. Approximately 15 to 25 percent of leave applications are granted.
6. Hearing: If leave is granted, a hearing is scheduled, usually within a few months. The hearing is typically short (one to two hours) and involves oral arguments from both sides. No new evidence is presented at the hearing; the court relies on the record that was before the original decision-maker.
7. Decision: The judge will issue a written decision, either granting or dismissing the judicial review. If the review is granted, the judge will typically send the matter back to a different decision-maker for a new decision, rather than making the decision themselves.

Certified Questions

At the end of a judicial review hearing, either party may ask the judge to certify a 'question of general importance.' If a question is certified, it creates a right of appeal to the Federal Court of Appeal. Without a certified question, the Federal Court's decision on judicial review is generally final.

Costs of Judicial Review

Judicial review can be expensive. Costs to consider include:

• Legal fees: Immigration lawyers typically charge several thousand dollars for judicial review cases. Complex cases can cost CAD $5,000 to $15,000 or more.
• Court filing fees: The Federal Court charges filing fees, though these are relatively modest compared to legal fees.
• Disbursements: Costs for document preparation, certified translations, courier services, and other expenses.

If you cannot afford a lawyer, you may be able to access legal aid in your province or find a lawyer who offers pro bono (free) services for immigration cases. Some law school legal clinics also assist with judicial review cases.

Stays of Removal

If you are facing removal from Canada while your judicial review is pending, you may apply for a stay of removal. A stay is an order from the Federal Court that temporarily prevents your removal until the judicial review is decided. To obtain a stay, you must demonstrate:

• There is a serious issue to be determined
• You will suffer irreparable harm if removed
• The balance of convenience favours granting the stay

Stay applications are urgent and must be filed promptly. The court can schedule a hearing on very short notice for stay applications.

Common Mistakes to Avoid

• Missing the filing deadline: The 15-day and 60-day deadlines are extremely strict. Courts very rarely extend these timelines. Contact a lawyer immediately after receiving a negative decision.
• Filing without a lawyer: While you have the right to represent yourself, judicial review involves complex legal arguments and procedural requirements. Self-represented applicants have significantly lower success rates.
• Expecting a new decision: Remember that even if the judicial review is successful, the court sends the matter back for a new decision. It does not approve your application.
• Not understanding the standard of review: The court does not simply disagree with the decision. You must show that the decision was unreasonable or procedurally unfair, which is a specific legal threshold.

When Judicial Review May Not Be the Right Choice

Judicial review is not always the best option. Consider whether:

• You can simply reapply with a stronger application
• You have other appeal rights that have not been exhausted (such as an appeal to the IAD or RAD)
• The cost and time of judicial review are justified by the potential outcome

For more on the appeal options that may be available before resorting to judicial review, see our guide on appealing immigration refusals at the IRB.

Finding Legal Representation

To find a lawyer experienced in immigration judicial review, visit the IRCC authorized representatives page or contact your provincial law society's lawyer referral service. Acting quickly is essential given the tight filing deadlines. With the right legal guidance, judicial review can be an effective way to challenge an unfair or unreasonable immigration decision.