Timelines and Deadlines for Judicial Review of IRCC Refusals

What is Judicial Review?

Judicial review is a process by which an individual can bring a government entity to court in order to ensure that they followed procedures and that the decision is reasonable and without bias. When you are trying to immigrate to Canada, and your application was denied by Immigration, Refugees, and Citizenship Canada (IRCC), you may be able to file for judicial review in order to get that decision overturned. The process of filing for leave and judicial review is complex, and there are several deadlines and time limits that you must be aware of. In this article, we will break down and simplify those deadlines and time limits. We will also take a closer look at how long the judicial review process might take, and what circumstances could cause delays in the process. In a judicial review, you will be called “the Applicant” since you are applying for judicial review. IRCC will be responding to the judicial review, and they will be called “the Respondent.” Of note, an application for judicial review is filed against the Minister of Citizenship and Immigration (as opposed to Immigration, Refugees, and Citizenship Canada - IRCC).

Deadlines for Your Judicial Review Application

There are several deadlines in the judicial review process: some are for you (the applicant), while others apply to the Respondent, the Minister of Citizenship and Immigration.

In this section, we are going to focus on the deadlines you need to be aware of as the applicant. In the next section, titled “How Long Does a Judicial Review Take?”, we will look at some of the deadlines IRCC must follow.

Application for Leave and Judicial Review

To apply for judicial review, you must first apply for leave - basically, you are asking the court for permission to proceed with the judicial review process. In order to apply for leave, you must first receive notification that your application was refused.

There are two different deadlines to keep in mind:

• You have 15 days to apply for leave for a matter arising in Canada, or

• You have 60 days to apply for leave for a matter arising outside of Canada

These deadlines are extremely important to remember. If you miss them, you cannot apply for leave and judicial review unless there are exceptional circumstances that would warrant an extension.

There are a few things to keep in mind when working with these deadlines:

• The countdown starts the day after you receive the decision from IRCC.

• The deadlines include all days, including weekends and holidays!

• The application for leave must be received within those timeframes - don’t wait until the last day to file your application, or it will be denied.

For these reasons, it’s best to complete your application for leave and judicial review as soon as you receive the refusal. Unexpected delays could be costly.

As noted above, in some exceptional circumstances, you may be able to file for an extension of the timeline to apply for leave. Being granted this extension is very rare, however, and you should do everything within your power to ensure that your application for leave is served to the Minister of Citizenship and Immigration and filed at the Registry of the Federal Court as soon as possible.

Notice of Appearance

Once you have filed your application for leave and judicial review, the Respondent, the Minister of Immigration, will need to file a Notice of Appearance. This tells the Federal Court that the Respondent is going to oppose and participate in the leave and judicial review process.

The Respondent has 10 days to file their Notice of Appearance; you will receive a copy of the Notice of Appearance by email if you provided an email on the application for leave and judicial review. Failure to file the Notice of Appearance means the process will proceed without the Respondent. In practice, this rarely happens.

Waiting for the Tribunal’s Decisions and Reasons

As part of your application for leave and judicial review, you will most likely request the reasons for the Tribunal’s decision.

While most parties are under strict timelines, the Tribunal, IRCC, is instructed to provide the reasons for the denial of your application “without delay.”

Unfortunately, there are delays. Generally, it will take 6 to 8 weeks before you receive the reasons your application was denied. When IRCC is particularly busy, it can take even longer. Waiting for the Tribunal’s reasons for their decision is one of the longest parts of the judicial review application process. Nonetheless, getting these reasons is key to a successful judicial review application.

IRCC must provide the reasons for the refusal. Your refusal letter will contain some of the details of why your application was refused, but there are almost always more details (such as the notes from the officer who was handling your case).

The reasons for the decision by the Tribunal are similar to the information you would receive in an access to information request. However, the rules and the exact documents that you will receive vary slightly.

Filing the Applicant’s Record—the Memorandum of Argument

No matter how many reasons were provided, you will have to file what’s known as “The Applicant’s Record.” Within this record, you’ll provide an affidavit and several other documents, including “The Memorandum of Argument.” This must be filed:

• Within 30 days of filing your Application for Leave if all the reasons for refusal were provided as part of the refusal of your application (this is extremely rare), or;

• Within 30 days of receiving the reasons if they were not provided as part of the denial, or;

• Within 30 days of being notified that there are no reasons for the denial available.

The process of a judicial review in Canadian immigration cases requires thorough preparation of the Applicant’s Record. This includes an affidavit detailing the facts relied upon for the argument. It is common practice to attach exhibits to the affidavit. The goal is to clearly demonstrate the reasons behind the claim of an unreasonable refusal. For instance, when arguing that the immigration officer failed to consider certain documents, these should be presented as exhibits within the affidavit to reinforce the argument made in the application for leave.

The Memorandum of Argument is a separate document part of the Applicant’s Record, where the applicant will present legal arguments, supported by relevant case law, to establish that IRCC’s decision was unreasonable. This could cover various grounds, including but not limited to, evidence being disregarded, factual errors, or an unjust denial of the application.

It is imperative to ensure that the Memorandum of Argument is not only well-prepared but also that there is proof of its receipt by the Respondent before it is filed in Federal Court. Timing plays a crucial role in this process. Failing to meet the established deadlines could jeopardize the entire judicial review application, resulting in its rejection.

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Waiting for the Respondent’s Memorandum of Argument and Reply Memorandum

Once the Respondent has received your memorandum, they have the right to reply with their own Memorandum of Argument. This will contain arguments as to why the decision is reasonable. In some cases, if the Respondent believes that it is in their best interest and they will not succeed, they may offer a settlement of the judicial review.

Once you have received their reply, you have the right to reply in turn. This reply must be filed within 10 days of receiving the Respondent’s Memorandum of Argument. Like the Applicant’s Record, it must be filed with Proof of Service; you should file in advance of the final day in case of any mishaps.

With this, you’ve satisfied all of the important deadlines you need to. From here, it’s a matter of waiting for the Court to determine whether or not leave should be granted - and if it is, a matter of attending the judicial review hearing.

Approximately 80% of judicial review applications do not receive leave, resulting in the termination of the case without a Federal Court judge evaluating the merits of the application. Once leave is denied, the case is considered closed, and there is no option to appeal the leave rejection decision.

Given these statistics, it underscores the necessity of meticulous preparation of the application. Efforts should be made to negotiate a settlement when possible, and it is crucial to consult with an expert for legal advice to navigate the process effectively.

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When Will the Judicial Review Take Place?

If leave is granted, the judicial review hearing will take place within 30 to 90 days. All parties can agree to have the process occur sooner than 30 days, but this is quite rare. This means you can expect to wait 1 to 3 months from when leave is granted to when the judicial review hearing takes place.

In total, this process might extend beyond a year. While this is a substantial period of time, the potential to overturn an IRCC decision could justify the wait. The duration of a judicial review process, inclusive of applying for leave, varies, typically ranging from 3 to 6 months. Post-leave, an additional waiting period of 1 to 3 months is required prior to the judicial review hearing. Following the hearing, the Court’s decision can take anywhere between 1 to 6 months.

In addition, if you are able to obtain a settlement agreement, the process can be much shorter.

Working with BorderPass provides you with guidance to navigate this process efficiently. While the response times of IRCC and the courts are variables beyond one’s control, ensuring timely and comprehensive legal submission is imperative. Proactively applying for leave and promptly preparing memorandums and replies contribute to expediting the process.

Don’t lose sleep over deadlines for leave and judicial review - book a consultation with BorderPass today!

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FAQ

What is the deadline for judicial review applications?

The most important deadlines to remember for a judicial review application are that, once you have received notification that your application was refused:

• You have 15 days to apply for leave for a matter arising in Canada, or

• You have 60 days to apply for leave for a matter arising outside of Canada

You can find the other deadlines you need to remember throughout the rest of this article - there are quite a few, and they are all essential. Missing a deadline can hamper the entire judicial review process.

What is the role of the Federal Court in judicial reviews?

Judicial reviews were established to create a mechanism by which certain decisions by government bodies could be challenged in court - in essence, this means they were created as a way of confirming that a tribunal’s decision is reasonable.

Judicial reviews help establish procedural fairness, ensuring that all evidence is considered when evaluating immigration applications, and that the applicant is given an opportunity to respond. This process must, by its nature, take time. Both the Applicant and Respondent must file paperwork with the Federal Court.

Why should you seek expert advice when applying for leave and judicial review?

Meeting the deadlines for your judicial review application without the help of a legal professional is extremely difficult, and meeting those deadlines is one of the simplest parts of the application process. Writing a successful Memorandum of Argument or a Reply Memorandum takes years of knowledge and experience, and judicial review hearings are long and complicated.

The legal costs associated with an application for judicial review are often dwarfed by the benefits of a successful judicial review - and a good advisor will only encourage you to pursue judicial review if they believe you have a good chance of success.

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