The Leave Stage in a Federal Court Immigration Case

What leave is

Under section 72(1) of the Immigration and Refugee Protection Act (IRPA), judicial review by the Federal Court of any matter under the Act begins with an application for leave. Leave works as a gate: the Court first decides whether the case may go forward to a hearing.

The Act sets some features of that gate:

• A judge is to deal with the application without delay and in a summary way (section 72(2)(d))
• Unless a judge directs otherwise, this happens without anyone appearing in person (section 72(2)(d))
• No appeal lies from the decision of the Court on the application (section 72(2)(e))

Those provisions do not say whether the order must explain the outcome, so a lawyer can read a given order and explain what it states and does not state.

The sequence and the deadlines

For a decision of an Immigration and Refugee Board division, s. 169(f) measures the filing period from the notice of decision or the sending of written reasons, whichever comes later.

What the applicant's record contains

Rule 10(2) lists the record's parts, which must appear on consecutively numbered pages in this order: the application, the decision, the tribunal's reasons or its notice, any anonymity request, supporting affidavits, the memorandum of argument, and a statement on the language of the hearing.

Affidavits. Under Rule 12(1) they are limited to evidence the person signing could say as a witness. Rule 12(2) bars cross-examination on an affidavit before leave is decided unless a judge orders it for special reasons. Whether other material can be used depends on the facts, and a lawyer can advise on it.

The decision and reasons. Where the written reasons are brief, officer's notes are sometimes sought. How they are requested is covered in a separate guide on access requests.

The memorandum of argument. Rule 10(2) calls for short written submissions on the facts and the law that support the relief sought if leave is granted. Because pages are consecutively numbered, an argument can point to where in the file a fact appears.

What a lawyer looks at when preparing for leave

The Act and Rules do not set out factors that make leave more or less likely, and the outcome is the Court's to decide. In general terms, a lawyer preparing the record considers:

• Which of the statutory grounds for review (Federal Courts Act, s. 18.1(4)) the problem falls under, such as procedural fairness or an error of law
• What the written reasons say, and where the contrary evidence sits in the file
• How Vavilov (2019 SCC 65) frames reasonableness: the Federal Court has described a reasonable decision as one with a rational, coherent chain of analysis that fits the facts and law
• Whether the memorandum stays focused on the legal question rather than restating the original application

If leave is refused

The Act bars an appeal from the Court's decision on the application (section 72(2)(e)). What comes next depends on the individual situation. Other routes, such as a new application, a different pathway or a humanitarian and compassionate request, may or may not be open, and a lawyer can assess which, if any, apply.

If leave is granted

The judge who grants leave sets the date and place of the hearing. The Act sets the window as 30 to 90 days following the grant, with room for the parties to agree on something sooner (IRPA s. 74(a) and (b)). Rule 15 adds that the order sets time limits for the tribunal's record and for any further materials. Under Rule 17, the tribunal then prepares a record with the decision, reasons and relevant documents in its possession or control.

What to gather

• The decision, reasons and the date you were notified
• The application and supporting documents as submitted
• Any notes obtained from IRCC or CBSA
• Court documents received, with dates of service