Refused Immigration Applications to Canada

Judicial Reviews at the Federal Court

Your immigration application to Canada has been rejected by IRCC. However, you believe that IRCC’s decision is unreasonable or incorrect… You may be able to make an application for judicial review at the Federal Court of Canada.

What should you do if your immigration application to Canada is refused?

 

Don't WAIT

You must act quickly

When you receive the refusal letter, you have only 15 days in the case of a matter arising in Canada. You have 60 days in the case of a matter arising outside of Canada.

REACH OUT FOR HELP

Speak to an immigration lawyer

Seeking assistance or legal advice from a Canadian Immigration Lawyer will be your first step if your immigration application is refused by IRCC

Fight the refusal

Judicial Review or Reconsideration

When you connect with an immigration lawyer you will analyze the reasons for the refusal and develop your personalized strategy in how you can fight the refusal.

 
 

Judicial Review in a nutshell

What is a Judicial Review?

 

A Judicial Review is a legal procedure in which the Federal Court of Canada reviews the actions taken by a decision-maker.

In Canadian immigration law, you can file an Application for Leave and Judicial Review (ALJR) of a decision by IRCC, such as a rejected Study Permit, a rejected Work Permit, a rejected Visitor Visa, a rejected Permanent Residence application, or another final decision on any other immigration applications. If you are successful with the Judicial Review at the Federal Court, the decision of an immigration officer will be overturned, and another IRCC officer will reconsider your immigration application.

The Federal Court of Canada will apply the standard of review of “Reasonableness” unless there is a breach of natural justice and/or duty of procedural fairness. This means that the Court will review the decision and determine if the decision is “reasonable”.

A reasonable decision is a decision that is internally coherent and based on a rational chain of analysis. It must be justified in relation to the fact and law.

Under the “Reasonableness” standard, a decision-maker is entitled to deference. This means that the Federal Court will not easily overturn a decision or substitute it. However, at all times the decision of the IRCC officer must not be arbitrary and must be intelligible, internally coherent, and based on a rational chain of analysis.

 

You must act promptly

Very tight deadlines.

When facing a refusal on your immigration application to Canada, it is crucial to be aware of the tight deadlines associated with filing a Leave Application to the Federal Court of Canada. These deadlines are stringent, typically allowing only a brief window from the date of refusal notification to submit your application for Judicial Review. Missing this deadline can severely limit your options for recourse. Therefore, the best course of action is to seek immediate assistance from a qualified immigration lawyer as soon as you are informed of the refusal. Time is of the essence, and prompt legal advice can be pivotal in securing a positive outcome.

 

A matter arising in Canada

15 days

to file for Judicial Review.

A matter arising outside Canada

60 days

to file for Judicial Review.

What does the Process Look like?

How to make an application for Judicial Review?

 

Step 1: Submit a Leave Application to the Federal Court of Canada.

You must commence your application for Judicial Review by making an Application for Leave and Judicial Review (ALJR) at the Federal Court. In plain language, you need to seek permission from the court to start a judicial review, have a hearing, and obtain a decision. To obtain leave, you need to prepare an applicant’s record, where you explain why IRCC’s decision is unreasonable or incorrect.

The first step is to file an Application for Leave and Judicial Review and serve it to the Department of Justice (DOJ). This is a notice to the DOJ that you will proceed with a judicial review. In reply, the DOJ will provide a notice of appearance. The notice indicates that they intend to respond to your Application for Leave.

Step 2: Receive the Rule 9 Reasons for Refusal from IRCC

Once the Leave Application is filed, if no reasons for the decision were received, the Federal Court will make a request to IRCC to obtain the reasons under “Rule 9”. The “Rule 9” disclosure contains the notes of the immigration officer who reviewed and refused your immigration application to Canada.

Step 3: Prepare a Memorandum of Argument

Once the “Rule 9” disclosure is received, the applicant’s record needs to be perfected. You need to provide a Memorandum of Argument. This contains legal research and arguments to convince a judge that IRCC’s decision is unreasonable.

IRCC, who will be represented by a lawyer from the Department of Justice (DOJ), will also have an opportunity to provide their own Memorandum of Argument. After you receive the respondent's record, you will have an opportunity to provide a reply to the DOJ’s Memorandum of Argument.

Step 4: Obtain Leave from the Federal Court

Don’t get confused with the term “Leave”. Think of it as a “Permission” from the Federal Court to bring your case forward to an actual judicial review.

As noted above, your Leave Application must be granted by a Judge before you can proceed with a Judicial Review. When the Applicant's and Respondent's records are perfected, a Judge will review them on paper. The Judge has important discretion in deciding whether or not to grant your application for Leave. In most cases, if your application has no chance of success in a Judicial Review, your Leave application will be dismissed.

The majority of applications for Leave are rejected. The Federal Court only grants leave in approximately 20% of applications for immigration matters in Canada. If your application is rejected on Leave, you cannot appeal it. If your Leave Application is granted, a judge will fix a hearing for your application for Judicial Review. As such, it is important to properly prepare, research, and argue the Memorandums of Argument to be successful on Leave.

Step 5: After your Leave Application is granted

During the hearing, you will argue that IRCC made an error of fact, law, or fact and law. IRCC will argue that there is no error. As a general rule, new evidence is not allowed at the judicial review. The Judge will examine the evidence that was before the immigration officer at the time of the decision. They will further examine the reasons for the decision and how the law was applied.

The Federal Court will issue a decision after the hearing. It can take between one to six months depending on the complexity of the matter. If the Federal Court grants your application for Judicial Review, IRCC’s decision will be set aside. This means that the rejection will be overturned and your original application will be returned to IRCC. A different immigration officer at IRCC will reconsider your immigration application based on the information originally provided at the time of your initial application.

Essentially, this means that even if the Federal Court grants your Judicial Review application, your immigration application could be rejected by another immigration officer.

 

What else can you do if your immigration application is refused?

Often, Judicial Review is considered as a matter of last resort. There are other alternatives to Judicial Review that you may consider if your immigration application to Canada is refused. These alternatives might be more time-efficient, cheaper, and get you the solution you’re seeking. Speak to our Canadian Immigration Lawyer if your application was refused to decide on your best course of action.

 

Reapply

Submit a new application

This may be the best solution to a refusal. Our lawyers can help you identify the weak points and improve your new application.

Reconsideration

Ask the officer to reassess your file

By preparing the Reconsideration Request you’re asking the immigration officer to reopen and reconsider your refused application.

Judicial Review

Go to Federal Court with ALJR

If the reasons for the refusal were not intelligible, coherent, and based on a logical chain analysis, submitting the ALJR may be your best option.

How do we work with our clients when preparing Judicial Reviews?

We collaborate with our clients to prepare strong Judicial Review applications. We meet with you to explain the process and develop our approach together - from start to finish.

We negotiate with DOJ throughout the proceedings. If we can reach a Settlement with DOJ and IRCC, the Judicial Review can be discontinued, and another immigration officer can reconsider your immigration application.

Reaching a Settlement will minimize legal fees and your application may be processed quicker.

Our reputation is everything for us! We only proceed with cases that have a reasonable likelihood of success. Book a consultation with a lawyer to assess whether a Judicial Review is appropriate for you.

Frequently asked questions

You probably still have many questions about Judicial Reviews.

We’ve got some answers for you here:

  • This depends on your specific case. While only 20% of immigration applications obtain Leave at the Federal Court, some applications reach a settlement before Leave. In other words, IRCC consents to the application for Judicial Review and reassigns your immigration application to another immigration officer.

    IRCC may also want to reach a Settlement. First, it takes time and resources to oppose a Judicial Review. Second, if you were successful at the Judicial Review, it may set a precedent for other cases and oblige IRCC to change their procedures for other refusals.

    For example, if a judge finds that IRCC made unreasonable findings on the implementation of a program, it may oblige IRCC to change how they assess thousands of applications. In other words, they may settle your case to avoid creating precedents and overhauling a program.

  • A Judicial Review is a last resort. The Federal Court only considers final decisions. For example, if IRCC sends you a letter of procedural fairness, the administrative process is ongoing and a Judicial Review would not be appropriate. In this example, IRCC has not rendered a final decision and the Judicial Review process is premature.

    The Federal Court will only consider a Judicial Review when all other avenues have been exhausted. For example, if you have a right to appeal at the Immigration and Appeal Division of the Immigration and Refugee Board, you are expected to seek an appeal at the IAD before filing an Application for Leave and Judicial Review.

    A Judicial Review is a review of a decision by a judge. Your initial application is the basis of the Judicial Review. In most cases, you cannot provide new evidence. If your initial application is weak or it was incomplete, a Judicial Review may not be appropriate. A Judicial Review is not an opportunity to provide additional supporting documents.

    You may consider strengthening your immigration application and reapplying. If you get refused again, file an Application for Leave and Judicial Review for the second, stronger application.

  • Yes. The Federal Court has a detailed guide for self-represented litigants. However, it is strongly recommended to have a Canadian Immigration Lawyer as the process can be complicated, and the procedures are specific. As noted above, you will need to prepare an applicant’s record with arguments with legal research. A properly prepared researched and prepared application is crucial to argue your application and obtain Leave from the Federal Court.

  • A Judicial Review and an Appeal have different meanings in law. An Appeal can be made to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board in limited cases, such as a refused Spousal Sponsorship Application, residency obligations, removal orders and admissibility.

    A Judicial Review can be made for final decisions from the IAD. If the IAD rejects your appeal, you can make a Judicial Review of that decision. However, as noted above, if you can appeal to the IAD, you must do so before seeking a Judicial Review.

  • In most cases, you cannot appeal a decision of the Federal Court. You need to have a certified question to appeal the decision to the Federal Court of Appeal. At the end of the hearing, you and the DOJ will have an opportunity to propose a question to be certified.

  • In most cases, you cannot obtain legal costs from the Department of Justice if your Judicial Review is granted. You must have special reasons for the cost, and the burden is high. This means that, if you win, the Federal Court will not order that DOJ pays for your legal fees.