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October 1, 2022

Judicial Review in the Federal Court of Canada

Written by Jeremiah Eastman

The Process in summary

When IRCC (an immigration officer or a visa officer), CBSA (removal officer or enforcement officer) or the IRB (Immigration Division, Immigration Appeal Division, Refugee Appeal Division), to name a few government departments that make immigration decisions, makes a negative decision on your immigration matter, such as refusing your work permit visa application, spousal sponsorship application, or  removal decision, you can challenge that decision in the Federal Court of Canada, even if you are outside of Canada.

Challenging a negative decision in the federal Court is a two-stage process.  

The first stage is the LEAVE stage and it is entirely in writing: you or your lawyer does not appear in court before a judge. 

At this stage you have to try and persuade a judge of the Federal Court that you have an arguable issue that the court should decide on.  If the judge agrees with you, they will grant you leave (permission) to go on to the second and final stage.  If you fail to persuade the judge, they will dismiss your application for leave and judicial review, which means your court challenge is over (YOU LOSE). This stage, generally speaking, takes about 4-6 months to complete.  

The second stage is the JUDICIAL REVIEW stage and it takes place in the courtroom before a judge (in person or virtually).  

At this stage you must present strong evidence and argument (both in writing and orally in person) demonstrating why the court should overturn (quash) the decision maker’s decision.  If the judge agrees with your arguments (YOU WIN), they will overturn the negative decision you challenged and send your immigration matter back to another decision-maker (ex. another visa officer) to reconsider your matter without making the same factual and or legal errors.  This stage also takes, generally speaking, 4- 6 months to complete. 


Two things to keep in mind

Only lawyers can file an application for leave and judicial review in the Federal Court, and they must be members of one of the provincial law societies.  Immigration consultants cannot file application for leave and judicial review in the Federal Court.

Your application for leave must be filed within a certain amount of time fixed by law.   Filing due dates are usually 15 or 60 days, depending on the type of decision being challenged. That it is why it is so important that you contact a lawyer as soon as you receive a negative decision.  A lawyer will be able to tell you when the filing due date is.

If you do receive a refusal decision, contact Eastman Law Office immediately.

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