Judicial Review at the Federal Court
Has your application been refused?
Our firm is well-known for its expertise in handling immigration application refusals and other negative immigration decisions. We specialize in cases involving study permits, visitor visas, work permits, family class application refusals, as well as inadmissibility findings, deportations, residency issues, citizenship, and refugee matters.
We assist clients throughout the litigation (sometimes referred to as the “appeal” process), representing them at various levels such as the Federal Court, and Immigration Appeal Division, aiming to overturn refusals and reopen cases for reconsideration.
Here, we provide some fundamental information about the Federal Court process.
What is seeking leave for Judicial Review?
The process of seeking leave and a judicial review at the Federal Court is a legal avenue that allows individuals to challenge a decision rendered by the Immigration, Refugees, and Citizenship Canada (IRCC). This recourse comes into play when IRCC rejects an individual's application for a study permit, work permit, permanent residency, or any other final decision.
A judicial review at the Federal Court becomes an option only after all other available avenues have been explored. For instance, if there is a right to appeal at the Immigration and Appeal Division of the Immigration and Refugee Board, pursuing an appeal at the IAD is a prerequisite before initiating an application for leave and judicial review.
The Federal Court employs a standard of review, primarily one of reasonableness. This implies that the court assesses whether IRCC's decision was reasonable based on the relevant facts and laws. However, if there is a violation of natural justice or procedural fairness, the standard of review may be altered.
To commence a judicial review, individuals must first apply for leave from the Federal Court, seeking permission to proceed with the process. This involves compiling an applicant's record that articulates the reasons why IRCC's decision is deemed unreasonable or incorrect. The Department of Justice responds with a notice of appearance and may submit a memorandum of argument. Subsequently, the applicant is afforded the opportunity to present their own memorandum of argument and respond to the DOJ's memorandum.
When to apply? What happens if my application is be granted?
You have 15 days, from the date you received your refusal letter, for a matter arising in Canada and 60 days for a matter arising outside of Canada. An extension may be possible if there are special reasons.
Should your application for judicial review be granted by the Federal Court, the decision made by IRCC will be nullified. This would result in the overturning of the rejection. Your original application will then be sent back to IRCC to be reassessed by a different immigration officer, who will consider the information that was initially submitted when you first applied.
It's worth noting, however, that even with the Federal Court's approval, there's still a possibility that your application could be rejected again by another immigration officer.
What are my Chances of success?
The approval of your immigration application hinges on your unique circumstances. Only some of immigration applications are granted leave at the Federal Court, but many cases are resolved through settlements before reaching this stage. In these instances, the Immigration, Refugees, and Citizenship Canada (IRCC) agrees to reassign your application to another immigration officer, circumventing the need for a judicial review.
IRCC may opt for a settlement for two primary reasons. Firstly, opposing a judicial review consumes a considerable amount of time and resources. Secondly, a favorable outcome in a judicial review could establish a precedent for subsequent cases, compelling IRCC to reevaluate its procedures for handling refusals.
The likelihood of success in a judicial review varies depending on the specifics of each case, and some applications may find resolution through a settlement even before seeking leave. It is advisable to engage the services of an immigration lawyer with expertise in litigation to enhance the prospects of a successful outcome.
Reconsideration, new application or Judicial Review?
If your application has been legitimately declined, meaning there are no legal errors in the immigration officer's decision, it might be more prudent to submit a fresh application instead of pursuing a reconsideration request. In addressing the grounds for refusal, ensure you furnish additional evidence and a detailed letter of explanation. For instance, if the refusal stems from a perceived lack of intention to depart Canada, bolster your case with additional proof of strong ties to your home country, such as property ownership, business holdings, prospective employment, and the presence of family members there. The specific supplementary information required will depend on the reasons for refusal, individual circumstances, and the notes provided by the visa officer.
Simultaneously, one can explore both reconsideration and judicial review processes. Reconsideration provides an opportunity for a reassessment of the immigration decision, but there is no formal obligation for a prompt decision. On the other hand, a judicial review is a legal avenue where one must demonstrate that the decision was either incorrect or unreasonable. It is crucial to note that a judicial review is a last resort and should only be pursued once all other avenues have been exhausted. The Federal Court only considers final decisions, and the initial application serves as the foundation for the review. In most cases, presenting new evidence is not permissible during a judicial review. Consequently, if the initial application was weak or incomplete, it may be more suitable to reapply with a more robust application. It's important to understand that a judicial review is not an opportunity to submit additional documents, and its appropriateness depends on the circumstances surrounding the original application.
HOW CAN OUR FIRM ASSIST YOU WITH A JUDICIAL REVIEW
Our team at The Law Office of Tià Sherene McCalla has the expertise and experience to navigate the intricacies of a judicial review. We will assess your case carefully, identify any errors or unreasonableness in the decision-making process, and develop a strong legal argument to present to the court.
We will guide you through each step of the judicial review process, from preparing the application for leave to judicially review to representing you in court. Our goal is to ensure that your rights are protected and that you have the best possible chance of success.
If you have received a negative decision and believe that it is unreasonable, contact The Law Office of Tià Sherene McCalla today. Let us help you seek justice through a judicial review and work towards a positive outcome for your immigration case.