Judicial Review Applications: The Full Picture.

In the realm of Canadian immigration, facing a refusal from Immigration, Refugees, and Citizenship Canada (IRCC) can be disheartening and frustrating. However, it’s important to recognize that a refusal does not necessarily mark the end of your journey. Understanding the process of applying for leave and judicial review can provide avenues for recourse. In this post, we’ll delve into the intricacies of this process, empowering individuals with the knowledge to challenge immigration refusals in Canada.

Understanding the Basics of the Application for Leave and Judicial Review:

Before diving into the application for leave and judicial review (ALJR), it’s crucial to comprehend the terminology and the grounds for refusal. A refusal from IRCC typically occurs when an application for immigration, whether it’s for permanent residency, temporary residency, or citizenship, is denied due to various reasons such as incomplete documentation, ineligibility, misrepresentation, or concerns regarding admissibility.

The Outcome on an Application for Judicial Review:

 An ALJR is not to seek to have the underlying application, that was once refused, granted. The Court, for the most part, does not have the authority to approve the application if it feels that the refusal was improperly issued. The outcome of a successful judicial review application is that the refusal that you are challenging will be revoked, and your application will be sent back to be redetermined.

For example, let’s say that you applied for a visitor visa to come to Canada from Nigeria. You submit all the documentation and information that is required, but your application is considered and refused. You then commence an application for judicial review, and go through all the steps set out below. If your application for judicial review is successful, it means that the Federal Court will determine that the refusal decision was unreasonable or wrong, and will order the refusal decision revoked. What will then happen is that your application will be sent back to IRCC to be re-determined by another officer. There is no guarantee that the new application will be granted, but at least the prior refusal was revoked, and you will have another opportunity to have your application considered.

Application for Leave:

The first step in challenging a refusal is applying for leave (permission) to seek judicial review. This process involves submitting an application to the Federal Court of Canada within a specified timeframe, typically within 15 or 60 days from the date of the refusal, depending on the type of application. The 15 day deadline applies to refusals issued from within Canada. The 60 day deadline applies to refusals issued from outside of Canada (i.e. from an overseas visa office).

The application for leave must outline the reasons for challenging the refusal and demonstrate that there are grounds for judicial review.

Grounds for Judicial Review:

 When applying for leave, it’s essential to identify valid grounds for judicial review. These grounds may include errors in law, procedural fairness issues, or unreasonable decision-making by IRCC. Common examples of errors include misinterpretation of immigration laws, failure to consider relevant evidence, issues of procedural fairness, or applying incorrect legal standards.

Stages of an application for leave and judicial review:

There are several stages to an ALJR. They are:

1. Application for leave and judicial review

You must prepare an ALJR, and then file it with the Federal Court Registry along with the required filing fee ($50). This is just the first step, but the most crucial in order to preserve all your legal rights to challenge an underlying refusal. This must be filed within the 15 or 60 day deadline, referred to above.

What happens next will vary depending on whether or not you have already received the reasons for the refusal decision.

For most refusals, you will only have received a decision letter, and not the actual reasons for the refusal. The reasons are usually in the form of the officer’s notes, who reviewed the application and who rendered the refusal decision. Thus, in most cases, when you initially submit your application, you do not yet have those officer’s reasons. Those reasons are critical for making the decision whether to actually pursue the ALJR, and so they are necessary to have in hand.

If you do not yet have the reasons for the refusal, you will indicate on your ALJR that you have not yet received the reasons for the refusal. Then, once the ALJR is submitted, you will have to wait for IRCC to send a copy of the reasons for refusal. Once you receive the reasons, you will then have 30 days from the date you receive the reasons to perfect your application (the next step).

In some cases, you will have already received the reasons for the refusal. For example, if you are applying to challenge the refusal of a humanitarian and compassionate application (H&C application), or Pre Removal Risk Assessment application (PRRA application), or a decision from the Immigration Appeal Division (IAD), or Refugee Appeal Division (RAD), you will likely have already received the complete reasons for the refusal. In that case, you will have to indicate on your ALJR that you have already received the reasons for the refusal.

If you already have the reasons for the refusal, then you will have 30 days, starting on the day you issue your ALJR, to perfect your application (next step).

 2. Perfecting the ALJR

Once you have commenced the ALJR with the Federal Court, and after you have received the reasons for the refusal, you will typically have about 30 days to “perfect” your application. Perfecting means to finalize your legal submissions, and submit to the Federal Court a completed application record. This will typically include an affidavit including all the evidence you seek to rely on for a judicial review (in judicial review applications you can only rely on evidence that was before the officer who made the decision, and in most cases you are not allowed to tender new evidence), as well as a legal memorandum of argument, which sets out your argument as to why you believe you are entitled to have your refusal judicially reviewed.

This is generally the most substantive part of an ALJR, as it requires knowledge of the law, the jurisprudence (case law), and an understanding of administrative law, wherein courts can take steps to overrule the decisions of tribunals.

At this 2nd stage, it is critically important to consider the reasons that are provided, and to determine whether it makes sense to actually pursue the ALJR. Litigation can be expensive and time-consuming. In some cases, it may make sense to simply withdraw from the litigation and re-file your underlying application, now that you have the reasons and the ability to understand the reviewing officer’s concerns. In other cases, your budget may not allow for the significant work that is required for perfecting the application. Therefore, it is important to review the reasons carefully, with counsel, to determine whether there are arguable grounds for a judicial review, and whether other options may make more sense.

 3. OPTIONAL: offer to settle

There are some cases where the refusal is so patently and obviously unreasonable, that it may actually make sense to try and preemptively communicate with the Department of Justice (DOJ) prior to spending significant time and money litigating the judicial review. In some cases, the DOJ may consider efforts to settle the matter, so as to avoid the time needed to go through the litigation process. It is important to approach such efforts at settlement diligently and delicately.

Making an offer to settle does not work in every case, but it can often be used to great benefit, saving much time and money.

4. Leave determination

Once your ALJR is perfected, you will receive responding materials from the DOJ. Thereafter, your respective materials will go to a judge of the Federal Court, for a determination as to whether there should be “leave” (permission) to hear oral arguments if there is an “arguable case.” At this stage, a judge will essentially determine whether there are grounds for a hearing, in which case s/he will want to hear submissions from counsel.

If leave is granted, a judge will schedule a hearing within 90 days of the date of the determination. If leave is denied, it means that a judge has determined that there is no arguable case, and your ALJR will be denied, and thus closed.

5. Hearing

If leave is granted, there will be a hearing before a Federal Court Judge. You, as the applicant, are not required to be present for the hearing or present any sort of evidence. The hearing is simply an opportunity for the Judge to hear oral submissions from counsel for the applicant and also for the IRCC, as to what they believe are the merits of the case. Often, judges will have many questions for both parties. The hearing typically lasts about 1.5 hours.

Afterwards, the Judge will typically “reserve” his/her decision, meaning that they will take some time to decide the outcome, and write a decision.

6. Outcome

If the Judge grants the application for judicial review, it means that the underlying refusal decision will be revoked, and the application will be sent back to be re-determined by another officer or tribunal.

If the judge rejects the judicial review application, that means the refusal decision stands, and the ALJR is now complete.

Preparing the Application:

Crafting a compelling application for leave requires careful attention to detail. It’s advisable to seek legal counsel or assistance from immigration lawyers experienced in judicial review matters, including knowledge of recent case law and developments in the field.

Final Considerations:

 It’s important to approach the application for leave and judicial review with patience and perseverance. While challenging a refusal can be a complex and time-consuming process, it offers a means to seek justice and potentially overturn an adverse decision. Seeking guidance from legal professionals specializing in immigration law can greatly enhance the chances of success.

The downside of an ALJR is that it can be time consuming (approximately 8-9 months) and expensive (likely costing between $8,000 to $10,000 if all the above-steps are needed). The upside however is that the court is a neutral body tasked with considering whether an underlying decision is incorrect or unreasonable, and applicants have the opportunity to have a refusal overturned.

The Hummel Law Difference:

At Hummel Law, we break down the ALJR process into its different stages, only requesting payment for each step as it comes up, and taking care to consider the merits of an ALJR carefully. Because of the length of time such applications take, and the potential cost, it is critical to consider whether such applications are in fact necessary, or whether suitable alternatives exist. Further, sometimes just obtaining a copy of the reasons at an early stage is enough to determine whether to pursue litigation, or go for another option (i.e. re-apply or try for another immigration path). At Hummel Law, we will carefully review your options with you, to ensure that we make decisions together as to what is in your best interest.

Conclusion:

Navigating the application for leave and judicial review represents a crucial step for individuals seeking to challenge immigration refusals in Canada. By understanding the process, identifying grounds for review, and preparing a robust application, applicants can pursue avenues for recourse and potentially overturn adverse decisions. While the journey may be challenging, it’s a testament to the resilience and determination of those striving to build a future in Canada.

 

Below is a flow-chart showing the steps of the judicial review process, detailed above.

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