Judicial Review

Judicial Review and Appeal

An application or an appeal for judicial review in the context of Canada immigration is filed by an appellant or applicant in order to challenge a decision adverse to their interests. The appeal is submitted when:

• The appellant is refused in Canada or overseas
• The appellant is facing deportation
• The appellant thinks that they have received an unfair decision
• The appellant was denied a permanent or temporary entry to Canada or citizenship in Canada or Canada PR visa

Application for leave

An Application for leave and judicial review means an appeal submitted to the Federal Court on an appeal on an immigration decision. In the first stage of this appealing process, which is called ‘leave’, the court considers the appeal based on written arguments and evidence. These are submitted by the lawyer representing the appellant, the lawyers for the immigration department and the Department of Justice.

The appellant’s lawyer first files a notice to the court in order to inform that the appellant is appealing the decision. If the case of an inland decision, the notice has to be filed within 15 days and on an overseas decision, it has to be filed within 60 days. As the next step, the lawyer files an application record, which includes arguments and evidence in favour of the appellant. The application record has to be submitted within 30 days after the notice is filed. The Department of Justice has 30 days to file a written reply after which, the lawyer of the appellant may file another written reply within ten days.

Most cases are settled by the Department of Justice at this stage. If not, the Court grants or denies leave after reading arguments from both parties, which is done four to six months after filing the notice. It is not possible for the appellant to appeal further if the leave is denied. If the leave is granted, the court will schedule a judicial review date within three months. The appellant may submit more evidence and arguments during this period.

Judicial Review

The judicial review hearing takes place at the Federal Court in Toronto. The appellant is not required to testify at the judicial review as all evidence has already been submitted. However, the appellant, his family and friends may be present at the court and observe the proceedings from the gallery. The decision is not announced by the judge there, but a copy of the judgment is sent to the appellant’s lawyer in a month or two. On rare occasions, the judge announces the decision on the spot.

If the judge’s decision is against the appellant’s interests, they may approach the Federal Court of Appeal. But for that, the judge has to think that the case is relevant to issues that may affect other people. The Department of Justice may also approach the Federal Court of Appeal if the decision is not in their favour.

If the decision is favourable to the appellant, the case will be sent to another decision-maker for reconsideration. If the case is refused again, it can be appealed again.