Reconsideration Request or Judicial Review When IRCC Refuses an Application?

People who search for a reconsideration request or judicial review IRCC refusal are usually holding a refusal letter and trying to decide what to do next. This guide explains the difference between the routes in plain language. It is general information, not advice about a particular file.

What is a reconsideration request?

A reconsideration request is a request to the same department that made the decision, asking it to look at the decision again. IRCC describes it, in a report to Parliament about temporary resident visas, as an informal recourse mechanism. Applicants contact the Department and ask it to reconsider, by email, by mail to the visa office, or through an online web form.

Three points from that report matter:

• It is discretionary. The decision-maker may decide whether the circumstances justify reopening the earlier decision. IRCC describes the process as informal, so whether it will reconsider is for IRCC to decide.
• Disagreement is not enough. According to IRCC, simply being unhappy with the outcome is not a ground for reconsidering. Its examples of circumstances that may justify it include a failure to follow procedural fairness and a clerical error.
• The applicant carries the burden. IRCC says it falls to the applicant to persuade the officer that reopening the decision is warranted.

The same report says there is no fee for a request. It also notes that outcome data is limited and that, anecdotally, a large portion of requests are refused because the reasons for the first refusal are often not resolved. That report speaks about temporary resident visa decisions. How another type of decision is handled depends on the office and the file.

What is judicial review of an IRCC decision?

Judicial review is a case in the Federal Court, not a request to IRCC. Under section 72(1) of IRPA, a person starts judicial review of any matter under the Act by applying to the Court for leave. "Leave" means the Court's permission to go ahead.

The Federal Courts Act lists the grounds on which the Court may grant relief, including that the decision-maker failed to observe procedural fairness, erred in law, or based a decision on a finding of fact made in a perverse or capricious manner or without regard to the material before it (Federal Courts Act s. 18.1(4)). If the Court is satisfied that a ground applies, it may quash the decision and return the matter to be decided again, with whatever directions it thinks fit (s. 18.1(3)(b)). In general terms, the standard of review the Court applies is described in Vavilov, 2019 SCC 65, and a lawyer can explain how that applies to a file.

The overview of federal court judicial review of IRCC decisions covers the steps in more detail.

Reconsideration versus judicial review: side by side

Reconsideration request or judicial review of an IRCC refusal: does the clock stop?

IRCC's report to Parliament says that a person who asks for reconsideration but wants to protect the court route must still file for judicial review within the prescribed time. The report adds that, if that is missed, the person is precluded from challenging the original decision and can challenge only the reconsideration decision in the Federal Court. That statement is made about temporary resident visa decisions, so the effect in another type of file depends on the facts and should be confirmed with a lawyer immediately.

The statute sets the time limit. Section 72(2)(b) of IRPA requires the application to be filed at the Federal Court Registry, and notice given to the other side, within 15 days (Canada-based matter) or 60 days (matter arising abroad), measured from when the applicant was told of the matter or first learned of it. A judge may extend that period "for special reasons" (s. 72(2)(c)). Under Rule 6, a request for extra time is made in the application for leave itself and is decided at the same time and on the same materials as the leave application. Whether extra time is available depends on the facts.

How judicial review runs after the application is filed

1. The application for leave is filed and served. Rule 5 lists what it must set out, including the decision challenged, the relief sought and the grounds. Rule 7 says it is served on each respondent, with proof of service filed within 10 days.
2. The record is perfected. Under Rule 10, the applicant serves and files a record with the decision, the reasons, supporting affidavits and a memorandum of argument, normally due 30 days after filing where the written reasons have been received.
3. A judge decides on leave. When leave is granted, the Court's order fixes the hearing date and the deadlines for any further materials (Rule 15). Under IRPA s. 74(b), the hearing is set for a date between 30 and 90 days after leave is granted, though the parties can agree on an earlier one.
4. The judge decides the application. Under s. 72(2)(d) of the Act, the judge must deal with the application quickly and by a summary process, with no delay.

Under Rule 22, no costs are awarded unless the Court finds special reasons. The Rules also apply Parts of the Federal Courts Rules to these cases (Rule 4).

Section 50 of IRPA lists when a removal order is stayed, including for the duration of a stay imposed by a court, so whether a stay is available is a separate question for a lawyer. Where removal is close, see our guide on the stay of removal emergency process.

What about reapplying instead?

IRCC's Help Centre, in a page about visitor visa refusals, says that whether to apply again depends on why the application was refused and whether the situation has changed. It says that applying again with the same information is not likely to change the outcome. A person whose circumstances have changed may be able to apply again with new information or documents that address the reasons in the refusal letter, though approval is not assured. The same page says that anyone who believes the process was unfair may request judicial review through the Federal Court.

Where the refusal involves misrepresentation, see misrepresentation and the five-year period.

When it is worth talking to a lawyer

People in this position typically speak with a lawyer when:

• a refusal letter or decision has just arrived and the filing date has to be worked out
• the refusal mentions procedural fairness, credibility, or a document that was questioned
• an earlier reconsideration request is outstanding and the court deadline is approaching
• the person is in Canada and a removal date or report has been issued
• the refused application involves a family member, a job, or status that is expiring
• the file contains a GCMS request or notes that may explain the reasons, covered in our walkthrough of requesting your GCMS notes

What to gather

A lawyer would typically ask for:

• the refusal letter and the date and method by which it was received
• the full application and all supporting documents as submitted
• any earlier letters from IRCC, including requests for information
• any reconsideration request already sent, and any reply
• a timeline of the person's status in Canada and any pending expiry dates