When people call an immigration refusal “unfair,” they can mean two very different things. They may mean the result seems harsh. Or they may mean that the officer ignored evidence, misread a document, or relied on something the applicant never got to answer. The Federal Court deals with the second kind of complaint.
That process is called judicial review. Applicants in Brampton usually first hear about it in a refusal letter or from a friend, and often come away believing that it is an appeal. It is not. Understanding the difference early can save you time and money, and it can help you decide whether to go to court at all.
Everything below is general information, not legal advice about your decision. Court procedures and practice directions do change, so check the Federal Court’s current notices and the rules that apply to your matter.
Why It Is Not an Appeal
In an appeal, a higher body may look again at the facts and substitute its own decision. Some immigration matters do have that kind of route, such as appeals to the Immigration Appeal Division or the Refugee Appeal Division. Where a right of appeal exists, section 72 of the Immigration and Refugee Protection Act generally requires you to use it before going to the Federal Court.
Judicial review works differently. The judge is reviewing the legality of what the decision-maker did, based largely on the record that was before that decision-maker. New evidence is generally not allowed, with narrow exceptions. So if your application was missing your bank statements, bringing them to court usually will not help. The Court asks whether the decision holds together on the materials the officer had.
The usual standard is reasonableness, as explained by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. A reasonable decision must be justified, transparent, and intelligible, and it must fit the facts and the law. Courts also review whether the process was procedurally fair, such as whether you had a chance to respond to a concern you could not have anticipated.
Common examples of arguments in these cases include:
- The officer overlooked or contradicted important evidence in the file
- The reasons do not explain the conclusion, or they rely on an assumption with no support in the record
- The officer applied the wrong legal test
- The officer relied on outside information without giving you a chance to respond
- The officer appeared to reach a credibility finding without saying so or without notice
An argument that “the officer should have given more weight to my job offer” is usually much weaker. Courts generally do not reweigh evidence.
The Deadlines Are Short
The filing deadlines are in paragraph 72(2)(b) of the Act:
- 15 days for a matter arising in Canada
- 60 days for a matter arising outside Canada
Those days run from the date you were notified of the decision or otherwise became aware of it. A refused work permit extension or an in-Canada H&C application would usually be a 15-day matter. A visitor visa refused at a visa office abroad would usually be a 60-day matter. The dividing line is not always obvious, so if you are unsure, assume the shorter period until you have advice.
A judge can extend the time for special reasons, but you would need to ask, explain the delay, and show that the case has merit. Treat the deadline as real. Many people find out about this remedy too late because they spent the time emailing IRCC or asking for reconsideration. A reconsideration request does not stop the clock.
Step by Step
Filing the Application for Leave
The case begins with an Application for Leave and for Judicial Review. “Leave” means permission, and the Court has to grant it before your case can be heard. The person who filed is the applicant, and the respondent is typically the Minister of Citizenship and Immigration, represented by the Department of Justice.
The filing fee is $50 under the Federal Courts Citizenship, Immigration and Refugee Protection Rules. Documents can be filed electronically, and the Court has a practice guide with forms for people representing themselves. The application has to be served on the respondent, and proof of service filed, within the times set by the rules.
For applicants in Brampton, the nearest office of the Court is in Toronto, although many steps can be completed electronically, so you will rarely need to attend a registry counter in person.
Getting the Reasons
If you do not have reasons for the decision, the application says so, and the Court’s registry will ask the decision-maker to provide them. IRCC advises that you should say you have not received the reasons even if you received an officer decision note, so that the Court can request the complete reasons.
Perfecting the Application
“Perfecting” means filing your Applicant’s Record. It generally contains the application, the decision and reasons, an affidavit from you (or from someone with direct knowledge) setting out the relevant facts, and a written legal argument called a memorandum.
Rule 10 sets a basic time of 30 days after filing the application, or after receiving the reasons where they came later. The Federal Court has issued special orders that give applicants additional time in immigration proceedings because of its heavy caseload. The Court’s current Consolidated Practice Guidelines are the place to confirm the time that applies to you, since these orders have changed. If the record is not filed in time and no extension applies, your case can be dismissed, even if the underlying complaint is strong.
The Minister then has time to file a response, usually with a memorandum and sometimes an affidavit, and you may file a short reply.
The Leave Decision
A judge decides whether to grant leave, usually on the written materials and without anyone attending. No reasons are generally given. If leave is refused, that is normally the end of the road, because the Act provides no appeal from that decision.
The Hearing
If leave is granted, the Court schedules a hearing, which the Act says must be set no sooner than 30 days and no later than 90 days after leave is granted unless the parties agree otherwise. You will typically have to file further materials. Hearings may be held in person or by video, and they generally involve legal argument rather than testimony. Applicants are often relieved to learn that they will not be cross-examined in the ordinary course. A judge then decides whether the application should be granted.
What Winning Looks Like
This is the point that surprises people most. If the applicant succeeds, the Court normally sets aside the decision and sends it back to be decided again by a different officer or panel. The judge does not usually hand you the visa, permit, or permanent residence. The fresh decision can be positive, or it can be another refusal with better reasons, although the second officer will have the Court’s reasons and can consider updated evidence.
Some cases never reach a judge. The Department of Justice may review the file and offer to settle, with the matter returned for redetermination. That can happen before or after leave is granted, and you should discuss any settlement with your lawyer before agreeing to it.
If the applicant loses, there is a further appeal to the Federal Court of Appeal only where the judge certifies a serious question of general importance. That is relatively uncommon.
Costs are also unusual. In this type of case, the rules provide that no costs are awarded unless the Court finds special reasons. So you generally should not expect to recover legal fees if you win, and you generally should not expect to pay the government’s costs if you lose. You will still have your own legal costs to pay.
A Stay of Removal Is a Separate Fight
Filing for judicial review usually does not stop removal from Canada, which is one of the most dangerous misconceptions in this field. The regulations do provide an automatic stay in some situations, such as when a person files for leave against a Refugee Appeal Division decision that rejected their claim, subject to exceptions. Most other cases do not benefit from anything automatic.
If you have a removal date and an application in court, you may need to bring a separate motion asking a judge to stay the removal. It is urgent work, and you must show a serious issue, irreparable harm, and that the balance of convenience favours you. The Federal Court’s notices show that it deals with a large volume of urgent stay motions, and last-minute filings make a difficult task even harder. If you have been called in by the Canada Border Services Agency, speak to a lawyer right away.
Deciding Whether to File
Before going ahead, it helps to weigh some practical questions:
- Is the mistake really a legal one? A lawyer can read the reasons, compare them with what you filed, and tell you whether there is something to argue.
- Would a fresh application be faster or cheaper? Sometimes the answer is yes, especially for visitor visas or where circumstances have changed. In other cases, a second application will meet the same problem, or the refusal has caused a loss of status that a new application cannot cure.
- Can you do both? Filing a court case and a new application at the same time may be possible, but the strategy has to make sense. For example, an approval on the new application might make the court case moot.
- Will the time help or hurt you? Court cases take months, sometimes longer. Your status, your job offer, and your age for a dependent child can all change during that time.
- Do you have the complete file? Because the record is what the officer had, you need a complete copy of what was filed. If an agent filed for you and will not hand it over, ask for it now.
Our immigration law page describes the kinds of matters we assist with, and anyone in Brampton with a deadline approaching can get in touch to ask about a review of the refusal. Bring the decision, the full application, and the date you first learned about it. No lawyer can promise that the Court will grant leave. A lawyer should be able to tell you frankly whether your file presents an issue the Court is able to address.