Exploring Judicial Review for Canadian Immigration: FAQ -- part two

Exploring Judicial Review for Canadian Immigration: FAQ -- part two

Introduction

Today's article dives into the legal recourse available to those facing a visa refusal in Canada: the judicial review process, initiated through an application for leave and judicial review with the Federal Court of Canada. You might be wondering, what exactly does judicial review entail for individuals in this situation? We're here to address other recurrent and commonly asked questions about this increasingly sought-after option for visa applicants. For our first judicial review FAQ, kindly refer to our previous blog article.

• Who are the parties involved in an application for leave and judicial review (ALJR)

In addition to the JR applicant, the Canadian Minister of Citizenship and Immigration is the respondent whose responsibility is to defend the decision and respond to the application. The Minister is the legally responsible entity for IRCC and the visa officer and is represented by a lawyer from the Department of Justice Canada.

• Can a JR decision made by the Federal Court of Canada be appealed?

Normally, a JR decision by the Federal Court is final and cannot be appealed. The notable and rare exception is when a judge certifies that a serious legal question of general importance is involved. Either party can submit a legal question of general importance for the judge’s certification. 

• What role does the Federal Court's decision-making play in the judicial review process?

When a decision under judicial review is claimed to be unreasonable—meaning it's missing justification, clarity, or transparency—the reviewing judge adopts a deferential approach. They focus not on determining if the decision is "good" but rather if its analysis is sound and withstands scrutiny. It's important to remember that Federal Court judges are not visa officers and may not be deeply familiar with the nuances that influence the approval or rejection of visa applications. This perspective ensures the judicial review concentrates on the decision's rationality rather than its merit.

• What happens if the judicial review is unsuccessful; do I have any further recourse? 

Yes, unless the refused applicant is barred from applying for a set period of time, which is the case for applicants inadmissible for misrepresentation for example, individuals can submit a second application at any moment after the initial refusal.

• How does the judicial review process impact my ability to reapply for a visa in the future?

The judicial review process does not influence your capacity to reapply for a visa in the future as long as the JR process itself is resolved. 

• Is every Canadian visa refusal eligible for judicial review, or do limitations exist on which types can be reviewed?

Yes, a core principle in Canadian law is that all final administrative decisions, including all temporary visa refusals, can be subjected to judicial review. A notable exception is cases that are rendered by the Immigration and Refugee Board, where the Refugee Appeal Division and the Immigration Appeal Division can hear appeals in certain immigration and refugee-related matters. In these cases, judicial review with the Federal Court is only possible if all appeal options are exhausted.

• Can I directly request a judicial review if my Canadian visa application is refused, or is there a preliminary step required?

Yes, as long as the applicant acts within the relevant time limits (60 days if outside Canada, 15 days if inside), the preparation and filing of an application for leave and judicial review (ALJR) is sufficient to start the judicial review process. The ALJR can include a request for the Officer’s notes, similar to those that you will obtain through an ATIP request.

• When can I discontinue my application for leave and judicial review?

If you do not wish to continue your application for leave and judicial review, notably after receiving a settlement offer by Justice Canada, it is possible to discontinue your application at any moment through the service and filing of a Notice of Discontinuance. 

• How many immigration-related applications for leave and judicial review does the Federal Court receive? 

In 2022, a total of 13487 applications for leave and judicial review were commenced with the Federal Court. This number is a notable increase from 2021 when a total of 9761 applications were commenced.

• Where can I read ALJR decisions rendered by the Federal Court?

The Federal Court’s website contains all the recent decisions that were rendered by the Court, including those involving immigration-related ALJR.

Conclusion

If you have case-specific questions or are considering judicial review as a recourse for your visa application refusal, connect with us to book a consultation at Canadian Future, where our legal team is dedicated to providing you with high-quality assistance.

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