Federal Court Judicial Review of an IRCC Refusal

What judicial review actually is

Judicial review is how the Federal Court checks the legality of decisions taken under the Immigration and Refugee Protection Act (IRPA). Under section 72(1), it starts with an application for leave to the Court. That covers "any matter" under the Act, which can include a visa officer's refusal.

A few points about what it is not:

• It is not an appeal. The Court is asked whether the decision can stand, not to make the decision again from scratch.
• It is not a second application. The Rules limit affidavits to evidence the person swearing could give as a witness, and whether anything beyond the original file can be used on a given review is a legal question for a lawyer.
• It does not list a visa as a remedy. Section 18.1(3) of the Federal Courts Act lets the Court order action, declare a decision invalid, or set it aside and send it back for determination with directions.

The Court's grounds are listed in section 18.1(4) of the Federal Courts Act. They include acting without jurisdiction, failing to follow procedural fairness, an error of law, and a factual finding that was perverse, capricious or made without regard to the evidence. A decision can be disappointing and still be lawful. Another can look routine and still fall within one of those grounds.

The deadlines, and what the Act says about extensions

Whether a particular decision "arose in Canada" or "arose outside Canada" is a question of the facts, and a lawyer should confirm which period applies. For Immigration and Refugee Board decisions, paragraph 169(f) starts the clock at notice of the decision or at the sending of written reasons, whichever comes later.

If the period has passed, section 72(2)(c) allows a judge to extend the time "for special reasons". Under Rule 6 of the Federal Court's immigration rules (SOR/93-22), the request is made inside the application for leave and is decided together with it, on the same materials. Whether an extension is granted depends on the court's discretion and the reasons given.

Requests for the officer's notes run on a different clock. A request under the Access to Information Act is answered within 30 days under section 7, and a request for your own information under the Privacy Act has a 30-day response period under section 14. Either can be extended in some circumstances. That is longer than a 15-day filing window, so the two timelines are worth discussing with a lawyer together. Our guide on GCMS notes explains the requests.

The stages, start to finish

Two features of the process often surprise people. The Act has the leave application handled quickly and on paper: absent a contrary direction, no one appears in person (section 72(2)(d)). It also removes any appeal from the Court's decision on that application (section 72(2)(e)).

The leave stage

Leave is the Court's permission to go forward. Because a judge may decide on the filed materials alone, the written record carries the weight. The Rules shape that record: Rule 10(2) lists what goes in, on consecutively numbered pages and in a set order, and the memorandum of argument sets out the applicant's submissions on the facts and the law, in concise form.

At this stage a lawyer typically looks at:

• Whether the problem can be tied to a ground listed in section 18.1(4) of the Federal Courts Act
• What the officer's written reasons actually say, and where in the file the relevant evidence sits
• Whether the argument can be made in a short, focused memorandum
• Whether the facts that matter were part of the file when the decision was made

Our guide to the leave stage goes into the record and its parts.

What the Court asks about the decision

The Supreme Court's decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, is the leading authority on the standard of review. In recent judgments the Federal Court describes a reasonable decision as one built on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision-maker.

A reviewing court therefore looks at the reasons the officer gave and at the file the officer had. Typical questions include whether the reasons connect the evidence to the conclusion, whether important evidence was addressed, and whether the officer applied a requirement found in the law or policy. Procedural fairness is a separate ground under section 18.1(4)(b). It looks at whether the process followed was fair, for example whether a person had a chance to respond to a concern.

What the Court can order

Section 18.1(3)(b) of the Federal Courts Act allows the Court to declare a decision invalid or unlawful, or to quash or set it aside, and to send it back for determination in accordance with directions it considers appropriate. Section 18.1(3)(a) allows an order that a tribunal do something it unlawfully failed or refused to do. Granting a permit, visa or status is not among the powers listed. What happens after a decision is sent back depends on the file and the new decision-maker.

Costs are addressed in Rule 22 of those same immigration rules: a party does not ordinarily pay or receive costs in a leave application, a judicial review or an appeal under those Rules; the Court can order otherwise only where it finds special reasons.

If the Federal Court rules against the application

Subject to section 87.01, section 74(d) of the IRPA allows an appeal to the Federal Court of Appeal in one situation: the Federal Court judge certifies, and words, a serious question of general importance. Rule 18 gives the parties an opportunity to ask the judge to certify one before judgment, and a party making the request must specify the precise question. Whether a question qualifies is for the judge.

Is judicial review the right route?

A lawyer reviewing a refusal usually considers more than the disappointment of the outcome:

• Whether the problem fits a ground under section 18.1(4), such as procedural unfairness or an unreasonable analysis
• Whether the real problem is a gap in the application itself, which a new application might address
• Whether another route exists, for example an appeal to a tribunal, since section 72(2)(a) makes any appeal right under the Act a prior step
• Whether anything changed after the decision, since the review focuses on the decision as it was made

Each of these depends on the file, and a lawyer can give an assessment.

What to gather

• The refusal letter and any reasons, with the date notified
• The full application as submitted, with the supporting documents
• Any procedural fairness letter and the response sent
• The officer's notes, if they have been requested or received
• Removal or other enforcement documents, if any