Immigration Application Refused? Understanding Judicial Review Applications
Receiving a refusal on your immigration application can be frustrating and overwhelming. Whether your application was for a study permit, work permit, visitor visa, permanent residence, or another immigration benefit, a refusal does not necessarily mean the end of the road.
In some cases, a refusal may be challenged through an application for judicial review before the Federal Court of Canada.
Because strict deadlines apply, it is important to seek legal advice as soon as possible after receiving a refusal.
Important Filing Deadlines
Applications for leave and judicial review must generally be filed:
Within 15 days of receiving a decision made in Canada; or
Within 60 days of receiving a decision made outside Canada.
Missing these deadlines can significantly impact your ability to challenge the decision.
What is Judicial Review?
Judicial review is a legal process through which the Federal Court examines an immigration decision to determine whether it was made fairly, reasonably, and in accordance with the law.
The Court does not decide whether it would have reached a different conclusion. Instead, the Court reviews the decision-making process to determine whether the officer or tribunal member acted within the limits of the law.
Unlike an appeal, a judicial review is generally not an opportunity to submit new evidence or re-argue the merits of the application. The Court’s focus is typically on the evidence and information that was before the decision-maker at the time the decision was made.
Common issues that may give rise to judicial review include:
Unreasonable findings of fact;
Failure to consider important evidence;
Misinterpretation of immigration legislation or policy;
Procedural fairness concerns;
Inadequate or unintelligible reasons;
Findings of misrepresentation unsupported by the evidence.
The Judicial Review Process
Stage One: Application for Leave
The judicial review process begins with filing an Application for Leave and for Judicial Review in the Federal Court.
The Applicant must then prepare and file an Applicant’s Record, which includes the relevant evidence and written legal arguments explaining why the decision should be reviewed.
The Department of Justice, acting on behalf of Immigration, Refugees and Citizenship Canada (IRCC), the Canada Border Services Agency (CBSA), or another government department, may file responding materials.
At this stage, the Court reviews the written materials and determines whether the case raises an arguable issue that warrants further consideration.
Importantly, many cases are resolved before the Court makes a leave decision. In some circumstances, the parties may reach a settlement that results in the decision being reconsidered without the need for a hearing.
If leave is denied, the matter ends. If leave is granted, the case proceeds to a judicial review hearing.
Stage Two: Judicial Review Hearing
If leave is granted, the Court schedules an oral hearing.
At the hearing, counsel for both parties present legal arguments regarding the reasonableness and fairness of the decision under review.
The Court does not hear witnesses or conduct a new assessment of the immigration application. Instead, it focuses on whether the decision-maker’s reasoning and process complied with the law.
What Happens If the Judicial Review Is Successful?
A successful judicial review does not mean that the Court grants the immigration application.
Instead, the Court will typically set aside the refusal and return the matter to a different officer or decision-maker for reconsideration.
The new officer must reassess the application in accordance with the Court’s reasons. While this provides another opportunity for the application to be considered, there is no guarantee that the outcome will ultimately be favourable.
To learn more about what happens after a successful judicial review, read our blog: “My Judicial Review Was Successful — What Happens Next?”
Should You Challenge Your Refusal?
Not every refusal should be challenged, and not every refusal contains a reviewable error.
Determining whether a judicial review is appropriate requires a careful assessment of the decision, the reasons provided by the officer, and the evidence that was before the decision-maker.
Given the strict timelines involved, it is important to seek legal advice promptly after receiving a refusal.
How Summit Point Law Can Help
Summit Point Law assists clients with judicial review applications involving:
Work permit refusals;
Study permit refusals;
Visitor visa refusals;
Permanent residence refusals;
Sponsorship refusals;
Misrepresentation findings;
Procedural fairness issues;
Refugee and inadmissibility decisions.
If your immigration application has been refused, contact Summit Point Law to discuss whether a judicial review may be available in your circumstances.