What is judicial review?

What is judicial review?

a. Introduction
To understand the purpose and functioning of the judicial review process, we must underline the
Canadian democratic system is behind it. Said the Canadian democratic system is divided into three
branches or powers for which Constitution 1 dictates the limits: the legislative branch, the executive
branch, and the judicial branch.
The legislative branch is responsible for making laws, within the scope of its respective competence set
out by the Constitution. Indeed, there is a legislative branch both at the provincial and federal level.
The executive branch, which is commonly called the government, helps enforce the laws passed by the
legislative branch, adopts governing policies and is responsible for decision-making processes.
Finally, the judicial branch, which is independent of the legislative and executive powers, is made of
Courts at both the provincial and federal level with different judicial functions. Courts of law are there to
review, assess, and apply the law and legal frameworks in scope of the different conflicts that may arise
in a society.

Now that the aforementioned division has been established, it is to be noted that in the matter of visa
issuance, Immigration, Refugees and Citizenship Canada (IRCC) is the administrative tribunal acting
under the executive power, in this case, the Ministry of Citizenship and Immigration. Indeed, such is an
example of the different branches delegating authority to an administrative body.
One must note that an administrative body renders its decisions within the scope of its enabling
legislation and regulations made thereunder. When said administrative body oversteps its competence
or misapprehends the legislation or regulations it must act upon, the visa applicant (Visa Applicant) has
restorative avenues. The judicial review process is one of those avenues when all other solutions have
been exhausted. 2 The judicial review process starts with the filing of an application for leave in which the
Visa Applicant needs to prove that they have an arguable case in consideration of the law and facts of
the application in question.

During the judicial review process, it is Justice Canada that represents IRCC. The Visa Applicant or their
representatives can negotiate with Justice Canada during the said process to obtain a settlement. One must
note that the conclusion of a settlement would be, in most cases, that of a judge granting the
application for judicial review: the contested decision is returned to IRCC for another immigration officer
(Officer) to decide upon.

Once leave is granted, the Applicant is heard by a Federal Court judge. The judge, in such a context,
analyzes the Officer’s decision in the scope of the enabling legislation of IRCC, case law, the regulations,
IRCC’s guidelines, and the facts. If the judge renders a decision in favor of the Visa Applicant, granting
the application for judicial review, it is to be reiterated that this means the original decision is deemed
unreasonable or that an issue of procedural fairness occurred, and that said the decision is to be sent back
to IRCC for another Officer to review and decide upon. If that is the case, the Applicant may resubmit
further supporting documentation.

1 Constitution Act, 1867, 30 & 31 Vict, c 3.
2 Immigration and Refugee Protection Act, SC 2001, c 27, at art. 72(2)a).

One shall note that the judicial review process is not for a judge to issue a visa. Indeed, it is only under
exceptional circumstances, namely in cases where only one outcome is reasonable or possible, 3 where
such a conclusion is possible.