Judicial Review

Challenge and overturn a refused immigration application in Federal Court. Important deadlines apply!

At BorderPass, we have extensive experience in advising on judicial reviews, a legal process that can help overturn unjust or incorrect decisions by IRCC. Our team has successfully guided clients through the complexities of judicial reviews, helping them reopen and succeed in their immigration applications. This expert guide dives into the process, success stories, and how working with BorderPass can enhance your chances of overturning a refused decision.

What is a judicial review?

Judicial review is a legal process where the Federal Court examines the actions of a decision-maker, such as Immigration, Refugee and Citizenship Canada (IRCC). By filing an application for leave and judicial review, you can challenge unreasonable or incorrect decisions made by IRCC. This includes refusals of study permits, work permits, Express Entry applications, sponsorships, and other final decisions.

If your judicial review is successful, the Federal Court will overturn the decision. IRCC will reopen your application and assign it to a different immigration officer for reconsideration.

To succeed in a judicial review, you typically need to demonstrate that the decision is unreasonable. The Federal Court generally applies the standard of review known as “reasonableness,” unless there are violations of natural justice or procedural fairness. The court assesses whether the decision is logically consistent, supported by a rational analysis, and justifiable based on relevant facts and laws.

Within the reasonableness standard, IRCC is granted deference, meaning the court is hesitant to overturn their decision or substitute its own judgment. As long as the decision falls within a range of acceptable outcomes, it will be considered reasonable.

It’s worth noting that immigration consultants are not authorized to provide legal advice, such as assessing the likelihood of a successful judicial review, or file for judicial reviews on your behalf.

What is the likelihood of success?

A judicial review can be successful by reaching a settlement or obtaining an order from a judge. The chances of success vary based on your case and any errors in the decision. If there is one or many mistakes, there will be a higher chance of success.

What is the deadline?

If the matter arises within Canada, you have 15 days from the receipt of the refusal letter to file the application. However, if the matter arises outside of Canada, you have 60 days to file the application. It is possible to request an extension of time, but it must be supported by special reasons.

What are successful examples of judicial reviews at BorderPass?

Below is a short list of real examples that led to successful judicial reviews:

• An applicant applied to extend their Post-Graduate Work Permit under a Temporary Public Policy. IRCC rejected the application because IRCC erroneously found that the applicant previously extended their PGWP under another Temporary Public Policy. The judicial review was successful, the application was reopened, and the applicant was issued their PGWP.

• An applicant was refused more than five times for a visitor visa (Temporary Resident Visa). IRCC continuously provided generic reasons for the refusals without considering the applicant’s circumstances. An application was filed, and a settlement was reached. IRCC reopened the file, and the visitor visa was approved.

• An applicant applied for a study permit but was rejected for numerous reasons. IRCC’s reasons were generic. They used “Chinook” to generate vague reasons for the refusals and failed to consider the applicant’s situation. An application for judicial review was filed. Since IRCC made findings contrary to the evidence submitted, the judicial review was successful and IRCC approved the study permit without reopening the file.

• An applicant updated their permanent residency application by webform. They provided updated forms and more information for their application. IRCC rejected the application for failing to provide documents, but these documents were provided by webform months earlier. An application for judicial review was filed. The application was successful, and IRCC continued to process the permanent residency file.

Every case is different. Typically, if IRCC has made a mistake (or multiple mistakes), there will be a high chance of success. However, not every application for leave and judicial review is successful. Some are rejected.

What are the main steps in a judicial review?

To initiate a judicial review, you must first seek permission from the Federal Court by filing an application for leave and judicial review. This application serves as a notice to the court that you wish to proceed with a judicial review. We will outline the relevant facts and provide a short summary of the grounds for our arguments. In response, the Department of Justice (DOJ), which serves as the lawyers for IRCC, will provide a notice of appearance, indicating their intention to respond to your application for leave.

At this point, we will wait for IRCC to send the Rule 9 reasons. This is similar to the GCMS notes, and it will contain all the reasons for the refusal. In some cases, the Rule 9 reasons are different from the refusal letter that you received from IRCC.

Once the Rule 9 reasons are received, we will need to provide the applicant’s Memorandum of Argument. This document contains affidavits, exhibits, legal research, and arguments aimed at persuading a judge that IRCC’s decision is unreasonable.

IRCC, represented by a DOJ lawyer, will also have an opportunity to provide their own memorandum of argument. We will have the chance to provide a final reply.

As previously mentioned, it is crucial to obtain leave from a judge in order to proceed with the judicial review. Once the Rule 9 reasons are provided and all the arguments are filed by both parties, a judge will review them based on the written submissions. The judge holds significant discretion in deciding whether to grant your application for leave.

The majority of applications for leave are rejected by a judge. Therefore, it is crucial to thoroughly prepare, conduct research, and present persuasive arguments in your memorandums of argument to increase your chances of obtaining leave.

If leave is granted, a hearing will be scheduled, and oral arguments can proceed. Generally, new evidence is not allowed during the judicial review. The judge will examine the evidence that was presented to the immigration officer at the time of the decision, as well as review the reasoning behind the decision and its application of the law. Following the hearing, the court will issue a decision, which can take anywhere from one to six months depending on the complexity of the case.

This is a general overview, and it is important to adhere to specific rules and deadlines throughout the proceedings. It is recommended to seek the assistance of an immigration expert with litigation experience to conduct research, present arguments, and properly prepare your application for judicial review.

What happens if you are successful during a judicial review?

Your application will be reopened. You will be provided with an opportunity to update your application, and a different officer at IRCC will make a decision. While most applications are approved, it is not guaranteed.

How long does it take for a judicial review?

Around three to nine months. If a settlement is reached, it could take around three months. If a hearing is held, it can take up to nine months or longer.

Why should BorderPass represent you?

At BorderPass, we have a team of experienced professionals who have represented and filed applications for leave and judicial review at the Federal Court. We have successfully overturned refusals of Temporary Resident Visas (TRVs) including Super Visas, work permits including Post-Graduate Work Permits (PGWPs), study permits (SDS and non-SDS), and permanent residence including Express Entry and Provincial Nominee Programs.