Judicial review is a critical aspect of the Canadian immigration system. When an immigration decision doesn’t go your way, judicial review provides a way to challenge that decision. It allows a higher authority to review the processes and fairness of the original decision.
This can be a complex process, but understanding the basics can help you navigate it more effectively. Let’s explore what judicial review entails and what you need to know to approach it confidently.
What Is Judicial Review in Immigration Cases?
A judicial review in immigration cases is a legal process in which a court reviews the decision made by an immigration officer or board. It is not a re-hearing of your case but a review of the process and fairness of the original decision. Judicial review ensures that the decision was made in accordance with the law and principles of natural justice.
In Canada, judicial reviews are typically handled by the Federal Court. This court reviews immigration decisions to check if there were any errors in how the decision was made. It does not look at new evidence but focuses on the legitimacy of the original process. If the court finds that an error occurred, it can send the case back for reconsideration by a different decision-maker.
A judicial review is useful if you believe there was an unfair application of the law in your case. It seeks to correct procedural mistakes or misinterpretations of the law. Understanding this process can help you recognize when judicial review is the right course of action and what it entails.
Steps to Filing for a Judicial Review
Filing for a judicial review involves several important steps. Knowing these steps can help you navigate the process more effectively and avoid common pitfalls.
1. Filing an Application: The first step is to file an application for leave (permission) to seek judicial review. This must be done within a specific time frame, usually within 15 days for immigration decisions made inside Canada or 60 days for those made outside Canada.
2. Preparation of the Record: Compile the required documents, such as the initial decision, your application, and any communication with the immigration authorities. You need to provide a complete and accurate record for the court to review.
3. Legal Arguments: Prepare your legal arguments, explaining why the decision was incorrect and how it failed to follow legal standards. This often requires the assistance of a lawyer familiar with immigration law.
4. Filing the Record: Submit your documents and arguments to the Federal Court. Make sure to follow all the court’s rules regarding formatting and submission deadlines.
5. Waiting for Leave Decision: The court will decide whether to grant leave for judicial review. If leave is granted, the court will schedule a hearing. If leave is denied, the process ends here.
6. Attending the Hearing: If your leave application is successful, you will attend a court hearing where both sides present their arguments. The judge reviews the case and makes a decision.
7. Receiving the Decision: After the hearing, the judge will issue a decision. If the judge finds in your favour, the case may be sent back to be reconsidered by a different immigration officer or board.
Understanding these steps can make the judicial review process less daunting and help you be better prepared.
Common Grounds for Seeking Judicial Review
Seeking judicial review in immigration cases usually happens when you believe there was an error in the decision-making process. Here are some common grounds:
1. Procedural Fairness: If you were not given a fair chance to present your case or if the decision-maker didn’t follow proper procedures, you can seek a judicial review. An example could be not being given enough time to respond to a request for additional documents.
2. Errors in Law: If the decision-maker misinterpreted or incorrectly applied the law, this is a solid ground for judicial review. This might include misreading the requirements for a visa or misunderstanding refugee protection laws.
3. Unreasonableness: If the decision seems unreasonable based on the evidence presented, you can ask for a judicial review. This means that no reasonable person could have arrived at that decision given the evidence.
4. Bias or Conflict of Interest: If the decision-maker had a conflict of interest or showed bias against you, this is also a ground for review. This includes situations where the decision-maker had a personal interest in the outcome.
Understanding these grounds can help you decide whether judicial review is a viable option for challenging an immigration decision.
What to Expect During the Judicial Review Process
Knowing what to expect can make the judicial review process easier to navigate. Here are the key steps in the process:
1. Filing for Leave: After submitting your application for leave, the Federal Court will review whether your case qualifies for a judicial review. During this period, the court examines the initial documents to decide if there are grounds to move forward.
2. Court Hearing: If leave is granted, a hearing is scheduled. Both sides present their arguments. The hearing focuses on whether the original decision was legal and fair.
3. Judge’s Decision: The judge reviews all submissions and makes a decision. The judge can reject your application or find in your favour. If they rule in your favour, the case is often sent back to the immigration authorities for reconsideration by a different decision-maker.
Waiting for this decision can be stressful, but knowing what’s involved helps manage expectations. You won’t present new evidence; the focus remains on the original decision’s legality and alignment with legal standards.
Conclusion
Judicial review serves as a crucial check on the fairness and legality of immigration decisions. Knowing your options and what to expect can make this challenging journey more manageable. Whether you’re questioning procedural fairness, legal errors, or potential bias, understanding the process is the first step toward seeking justice.
If you need assistance with a judicial review, Doherty Fultz Immigration has got you covered. Our regulated Canadian immigration consultants in Toronto are here to help you navigate the complexities and ensure your voice is heard. Contact us today to get started.