- May 11, 2023
- Posted by: azimi
- Category: Student Permit
Find Out About a Legal Option Called Judicial Review
If you have been refused temporary residence (such as for work, academic study or visiting friends or family), then there is a certain amount of time (15 days, if the matter arose inside of Canada, or 60 days, if the matter arose outside of Canada) to apply for a judicial review of that refusal decision.
Judicial review is based on the rule of law. The rule of law is a principle of law and basically means that everyone, citizens and government alike, is subject to the law and no one is above the law. Judicial review is the mechanism by which courts (in this case, the Federal Court) ensure that the decisions of government tribunals and agencies (such as the IRCC) are fair and lawful.
Judicial review is started by the visa applicant filing an Application for Leave and for Judicial Review (“AFLJR”) at the Federal Court of Canada. The application must state the legal remedy the applicant is seeking. Usually this includes writs of certiorari (meaning an order quashing the visa officer’s refusal decision) and mandamus (meaning an order compelling the IRCC to refer the visa application to a different visa officer for a redetermination).
Early in the process, the IRCC is supposed to produce the reasons for decision which include not only the notice of decision but the visa officer’s notes which provide a more fulsome account of how and why the visa officer made the decision they did.
There are two main avenues of argument available in a judicial review proceeding – substantive review, which challenges the merit of the visa decision, and procedural review, which evaluates the fairness of the process through which the visa decision was reached.
In substantive review, because the visa decision is a question of mixed law and fact, the court applies a standard to of review to it called reasonableness. This involve analyzing whether the visa decision is intelligible, transparent and justified, and whether it is justified by the facts and law.
In procedural review, the starting point of the analysis is that the visa officer owes a visa applicant a duty of fairness to make a fair and unbiased assessment of the visa application and to inform the applicant of the visa officer’s major concerns (in relation to certain matters, such as the applicant’s credibility) and provide the applicant with a meaningful opportunity to respond to those concerns.
The process of a judicial review of an immigration decision encompasses two stages. In the first stage, the applicant must perfect the application by filing an applicant’s record within a certain timeframe and then the federal court judge, in about four to six months, decides whether the case has merit and if it does grants leave (i.e. permission) for the case to continue. If leave is granted, then the case proceeds to the second stage, a hearing, where both sides present their case verbally to the judge. At any time during this process, the IRCC may offer to settle the case.
Having a lawyer assist you with an AFLJR is beneficial because the lawyer can provide their legal knowledge and experience to help you present a convincing case to the judge.