Exploring Judicial Review for Canadian Immigration: is it better to reapply?

Exploring Judicial Review for Canadian Immigration: is it better to reapply?

Introduction

Facing a visa refusal in Canada opens the door to the option of judicial review, a legal process initiated by applying for leave and judicial review at the Federal Court of Canada. However, in some cases, judicial review might not be the most appropriate option, and a second visa application might be more convenient. In today’s article, we will explore the reasons that usually lead applicants to either reapply or go for judicial review.

In our previous discussion, we emphasized the importance of understanding the detailed reasons behind your application refusal, as provided by the visa officer in their internal notes. These comprehensive notes are key, especially when the refusal stems from several factors that might not be immediately clear. Understanding the visa officer's rationale can shed light on the precise elements of your application that led to its refusal, thereby enabling you to make a well-informed decision on whether to reapply or seek a judicial review. In the same article, we have also presented the available post-refusal options. Today, we will delve a bit further into the post-refusal strategies at your disposal and the scenarios in which they might be most appropriate.

Submitting a second application

Submitting a second application is a viable option for individuals whose refusal reasons are justified. This is often the case if your application was refused because you did not submit a necessary document. As we have discussed in our previous blog posts, applicants for temporary residence may see their applications received because the deciding officer was not satisfied that they would leave Canada at the end of their stay. If they are supported by the facts of the file, these reasons are valid and conform to Canadian immigration law. Applicants have the duty of proving to the Officers that they will respect the conditions of their stay, and if they fail to do so on the first try, a second application can be the opportunity to put their best case forward.

For example, if a study permit applicant failed to explain the reasons he or she is pursuing a study program in Canada and was issued a refusal as a consequence, reapplying might be a good course of action. In the second application, this student might provide further evidence as to the practical utility of the pursued study program, through job market research and concrete statements, to increase his chances of success. 

Judicial review

Another interesting option is judicial review, the goal of which is to have a refusal decision quashed through a court order or the terms of a settlement agreement [here, and here]. For judicial review to be granted by the Federal Court, IRCC’s refusal decision must be unreasonable or procedurally unfair. These determinations are questions of law and require an intricate legal analysis. Seeking a judicial review is a path worth considering for individuals who have faced multiple rejections despite numerous applications. It's also a viable option for cases where the decision appears to be significantly flawed, leading to an unwarranted refusal.

Conclusion

There is no objectively better option between submitting a second application or going for judicial review. Every refusal fits within a specific factual context and carries its own set of consequences. If you are considering your different options and are unsure as to how to proceed, it is best to consult a professional. 

A visa refusal can be disheartening news, but it is not the end of the road. If you are unsure about your next steps, contact us to schedule a consultation at Canadian Future. Our team of seasoned professionals can give you personalized insight and help you in realizing your very own Canadian Future.

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