A Judicial Review is a lawful process wherein the Court will assess the actions of a decision-making authority. In Canada immigration law, you have the option to file a leave application and judicial review of a decision by IRCC. It includes when IRCC rejects your application to apply for Canada PR Visa from India, Work Visa, or Study Visa.
The decision will be overruled if you are successful and one more Immigration Officer will consider your application again.
The standard of review of reasonableness will be applied by the Federal Court except if natural justice and/or procedural fairness duty is breached. It implies that the decision will be reviewed by the court to determine its reasonableness.
A decision that is coherent internally and based on a balanced sequence of analysis is a reasonable decision. It has to be justified with regard to law and fact.
A decision-maker is entitled to deference as per the standard of reasonableness. It implies that the overturning or substitution of the decision will not be done easily by the Federal Court with a decision that it might have taken instead of the decision-maker. There is a range of adequate outcomes and the decision of IRCC has to fall within this.
Strict timeline to start a Judicial Review
For filing a leave and judicial review application at the Federal Court there is a strict timeline. You have 15 days after receiving the refusal letter if the case pertains to an issue arising in Canada. If it arises overseas, you have 60 days. If you have special reasons you can seek extensions of time.
Application Process for Judicial Review
You have to start your judicial review application by filling out a leave application at the Federal Court. In simple terms, it means you have to get permission from the court for starting a judicial review, and hearing process, and get a decision.
For getting leave you have to provide a Record of the Applicant explaining why the decision by IRCC is inaccurate and unreasonable.
In the first step, you have to submit a leave and judicial review application and present it to the DOJ – Department of Justice. It is a notice that you will go ahead with the judicial review. In response, a notice of appearance will be offered by DOJ. It indicates their intention for responding to the leave application.
After this, if no reasons for the decision are received, a request to the IRCC will be made by Federal Court for getting reasons as per Rule 9. Its disclosures consist of the Immigration Officer’s notes.
After the receipt of the Rule 9 disclosure, the records of the applicant have to be made perfect. A Memorandum of Argument has to be offered by you. It consists of lawful research and arguments for convincing the Judge about the unreasonableness of the IRCC’s decision.
A Lawyer from the DOJ will represent the IRCC which will also get a chance to offer its own MOA. After receiving the record of the respondent, you have the chance to offer a response to the MOA by DOJ.
As stated already, a Judge has to offer to leave to go ahead with the Judicial Review. After the records of the respondent and applicant are perfected, these will be reviewed on paper by a judge.
In approving or disapproving your leave application, the Judge possesses crucial discretion. Your application will be mostly rejected if does not have any chance of success.
Most of the leave applications get disapproved. Only 20% of the leave applications in immigration matters are approved by the Federal court. You cannot appeal against the decision to reject your application for leave.
If your application is approved, a hearing for your judicial review application will be fixed by a Judge. Preparing, researching, and arguing the MOA properly is important as such for the success of your leave application.
Your argument during the hearing will be that error of law, fact, or law and fact was made by the IRCC while the latter will argue that is the absence of any error. Fresh evidence is not permitted in the judicial review as a general rule.
The evidence that was presented to the Immigration Officer while making the decision will be examined by the Judge. The reasons behind the decision and the manner of application of the law will also be examined further.
The decision will be announced by the Judge after the hearing which can require 1 to 6 months based on the case complexity.
So is the general overview. Several timelines and precise rules have to be adhered to all along the proceedings. You take the help of an authorized Immigration Lawyer at Nationwide Visas for properly preparing, researching, and arguing your judicial review application.