A visa refusal can feel like a significant setback, especially when the outcome disrupts academic, professional, or family plans. While the disappointment is real, it is important to remember that Canadian immigration law provides potential remedies. Two of the most common are the reconsideration request and the judicial review process.
Although both options serve the purpose of challenging a refusal, they are distinct in nature. A reconsideration request asks Immigration, Refugees and Citizenship Canada (IRCC) to review its own decision, while a judicial review for visa refusal involves the Federal Court. Knowing the differences between the two can help applicants make informed choices about the path forward.
What Is a Reconsideration Request?
A reconsideration request is a written submission to IRCC asking an officer to re-examine a decision that may have been made in error or without proper consideration of all the evidence. It does not involve the courts, and it is discretionary—meaning IRCC is not obligated to reopen the file.
This process is often pursued when new evidence becomes available or when there are reasonable grounds to argue that the initial refusal was made based on oversight.
What Is a Judicial Review?
Judicial review is a legal process where the Federal Court evaluates whether IRCC’s decision was lawful, reasonable, and procedurally fair. It does not reconsider the facts of the case or allow new evidence; rather, it examines how the decision was made.
The judicial review of IRCC ensures accountability by requiring immigration officers to follow the law and make reasonable decisions. If the court finds the refusal flawed, it may send the case back to IRCC for reconsideration by a different officer.
Key Difference 1: Who Reviews the Decision
- Reconsideration Request: The same office, and sometimes the same officer, that issued the refusal may review the case again.
- Judicial Review: A judge at the Federal Court assesses whether IRCC acted within the bounds of law and fairness.
This distinction is crucial. A reconsideration relies on IRCC’s discretion, while the judicial review of the Federal Court in Canada places oversight in the hands of an independent judicial authority.
Key Difference 2: Evidence and New Information
- Reconsideration Request: New evidence and updated documents can be included. For example, additional proof of financial stability or family ties may be submitted.
- Judicial Review: No new evidence is accepted. The court only considers the record that was before IRCC when the original decision was made.
For cases where important information was missing or misunderstood, a reconsideration request may be more effective. For situations involving potential legal errors or unfair decision-making, judicial review may be the most appropriate course of action.
Key Difference 3: Timelines and Deadlines
- Reconsideration Request: Although there is no strict deadline, the request should be made promptly after the refusal. Waiting too long may reduce the likelihood of IRCC reconsidering the case.
- Judicial Review: Strict deadlines apply—15 days for decisions made inside Canada and 60 days for those made outside Canada. Missing these timelines generally means losing the right to pursue the remedy.
The urgency of the situation often influences which option is pursued first.
Key Difference 4: Complexity and Cost
- Reconsideration Request: Typically less complex and less costly, since it involves preparing a written submission directly to IRCC.
- Judicial Review: More complex and usually more costly, as it involves legal filings, potential court appearances, and detailed legal arguments.
Although judicial review is more demanding, it provides an impartial review mechanism that can be decisive in correcting errors.
Key Difference 5: Possible Outcomes
- Reconsideration Request: If IRCC agrees, the refusal may be withdrawn, and the application reopened for review. If denied, no further explanation may be given.
- Judicial Review: The court does not grant the visa itself but can set aside IRCC’s refusal and order the application to be reconsidered by a different officer.
Both options can potentially lead to a more favourable result, but judicial review provides a legally enforceable remedy if IRCC’s actions are deemed unreasonable.
When to Choose Reconsideration Request vs. Judicial Review
Reconsideration Request is often suitable when:
- Key evidence was overlooked or missing.
- The refusal appears to stem from a misunderstanding of facts.
- New material information has become available.
Judicial Review is often suitable when:
- The refusal may involve an error of law.
- The decision appears unreasonable or procedurally unfair.
- Deadlines for reconsideration have not produced results.
A strategic assessment of the case, timelines, and refusal grounds helps determine the most effective option.
How an Immigration Lawyer Helps Navigate Both Options
Immigration remedies can be complex, with procedural nuances that directly affect outcomes. Legal counsel plays a critical role by:
- Assessing whether reconsideration or judicial review is the stronger remedy.
- Drafting persuasive submissions that address IRCC’s concerns.
- Meeting strict Federal Court deadlines and procedural requirements.
- Providing realistic guidance on potential outcomes.
Whether preparing a reconsideration request or pursuing a judicial review for visa refusal, working with a professional ensures that rights are protected and remedies are pursued effectively.
Making the Right Choice After a Visa Refusal
A visa refusal does not always mark the end of the process. Both reconsideration requests and judicial reviews offer opportunities to challenge the decision, but they differ in purpose, process, and potential outcomes. Understanding these distinctions allows applicants to pursue the most effective path for their situation.
The Law Office of Tià Sherene McCalla offers dedicated support in preparing reconsideration submissions and guiding clients through the judicial review process of the Federal Court in Canada. Contact the firm today to discuss the next steps with a judicial review lawyer for immigration appeal who can help turn a setback into a new opportunity.