Refused Canadian immigration applications can be challenged, but the avenues for doing so depend on the type of decision, the reasons for refusal, and the specific immigration program involved. Here are two ways to challenge a refused application:
What is the difference between a reconsideration request and a judicial review?
A reconsideration request and a judicial review are two distinct processes within Canadian immigration law, and they serve different purposes. Here’s a breakdown of the differences:
Reconsideration Request:
- Informal Process: A reconsideration request is an informal process and is not enshrined in law. It involves asking the same administrative body that made the original decision (e.g., Immigration, Refugees and Citizenship Canada [IRCC], or a visa office) to review its decision. This is not a right, and whether to grant a reconsideration is at the discretion of the decision-making authority.
- No Standard Procedure: There is no standardized procedure or form for requesting a reconsideration. The process may vary depending on the type of application and the office involved.
- New Information or Errors: Reconsideration requests are typically based on presenting new information that was not available at the time of the original decision or highlighting a possible error in the application of the law or procedure.
- Limited Scope: The scope of a reconsideration is limited to the original decision-maker reconsidering their decision. It does not involve a higher authority or court.
Judicial Review:
- Formal Legal Process: A judicial review is a formal legal process where the Federal Court is asked to review a decision made by an immigration officer or tribunal. It is a right provided under the law, specifically under the Immigration and Refugee Protection Act (IRPA) and the Federal Courts Act.
- Standard Procedure: The judicial review process has a standard procedure, including filing an Application for Leave and for Judicial Review with the Federal Court, within strict deadlines (15 days or 60 days after the decision, depending on where the decision was made).
- Legal Grounds: Judicial reviews are based on legal grounds such as an error in law, a breach of procedural fairness, or an unreasonable finding of fact. It is not a re-evaluation of the merits of the case but a review of the legality and fairness of the decision-making process.
- Higher Authority: The judicial review is conducted by the Federal Court, which is a higher authority than the administrative body that made the original decision. If the Court grants leave, it will hear the case and can quash the decision if it finds it to be unlawful.
- Possible Stay of Removal: If the individual is facing removal from Canada, they can also apply for a stay of removal as part of the judicial review process to prevent their deportation while the case is being reviewed by the Court.
In summary, a reconsideration request is an informal attempt to have the original decision-maker re-evaluate their decision, often based on new information or an alleged oversight. In contrast, a judicial review is a formal legal challenge of the decision in the Federal Court, focusing on legal errors or breaches of procedural fairness. Given the complexity and potential consequences of both processes, it is advisable to consult with an immigration lawyer to determine the best course of action for your specific situation.
When can I request a reconsideration?
In Canadian immigration law, “reconsideration” is not a formal part of the process for most immigration applications. However, there are circumstances where you might ask an officer to review a decision made on your application. The availability and process for requesting a reconsideration can vary depending on the application type and your case’s specific circumstances.
Here are some general guidelines:
- Visa Refusals: If your visa application is refused, you may be able to request that the office that made the decision reconsider it. This is not a formal right, and whether or not the office will agree to reconsider is at their discretion. You would typically need to present new information or demonstrate that there was an error in the decision-making process.
- Permanent Residence Applications: There is no formal reconsideration process for most permanent residence applications. If your application is refused, you can often reapply and ensure that any issues identified in the previous refusal are addressed. Alternatively, suppose you believe there was a legal error in the decision. In that case, you might consider an appeal to the Immigration Appeal Division (IAD) or a judicial review by the Federal Court, if applicable.
- Citizenship Applications: If your application for Canadian citizenship is refused, you have the right to request that the decision be reviewed by a different citizenship officer. If the second officer also refuses your application, you may have the right to appeal to the Federal Court.
- Refugee Claims: If your refugee claim is denied by the Refugee Protection Division (RPD), you may have the right to appeal to the Refugee Appeal Division (RAD). If the RAD does not grant you relief, you may seek leave by the Federal Court for judicial review.
- Express Entry: In the Express Entry system, if you believe there has been an error in the calculation of your Comprehensive Ranking System (CRS) score or in the eligibility determination, you can send a message through your account to request a review. However, this is not a formal reconsideration process and is at the discretion of Immigration, Refugees and Citizenship Canada (IRCC).
- Procedural Fairness: If you receive a Procedural Fairness Letter, it means that the officer is considering refusing your application for a specific reason. You will be allowed to respond and provide additional information or clarification before a final decision is made.
If you are considering requesting a reconsideration, it is important to act quickly, as there may be deadlines for taking action. Additionally, you should provide any new evidence or information that addresses the reasons for the refusal. It is often advisable to consult with an immigration lawyer to assess the merits of your case and the best course of action.
When can I request a judicial review?
In Canadian immigration law, a judicial review is a legal process where you ask the Federal Court to review a decision made by an immigration officer, tribunal, or the Immigration and Refugee Board (IRB). This process is used when you believe that there has been an error in law, a breach of procedural fairness, or an unreasonable finding of fact in the decision-making process.
Here are the general steps and timelines for requesting a judicial review:
- Leave to Appeal: Before you can proceed with a full judicial review, you must first apply for “leave” (permission) from the Federal Court. This means you are asking the Court to allow you to challenge the decision.
- Deadlines: The application for leave must be filed within a strict timeline. For most immigration matters, you have 15 days to file for leave if the decision was made inside Canada, and 60 days if the decision was made outside Canada. These deadlines are counted from the day you received the decision.
- Filing the Application: To initiate the process, you must file an Application for Leave and for Judicial Review with the Federal Court. This application should clearly outline the grounds for review and include a copy of the decision you are challenging.
- Stay of Removal: If you are subject to a removal order, you may also need to apply for a stay of removal to prevent your deportation while the judicial review is pending.
- Decision on Leave: After you file your application, a Federal Court judge will review it to decide whether there is a serious issue to be determined. If leave is granted, your case will proceed to a full hearing. If leave is denied, the process ends there, and the decision stands.
- Full Hearing: If leave is granted, the Court will schedule a hearing where both you (or your lawyer) and the government’s lawyer will present arguments. After the hearing, the judge will make a decision.
- Possible Outcomes: If the Court finds in your favor, it may quash the original decision and typically send the matter back to the immigration authority for re-decision by a different officer, with directions from the Court. The Court itself does not make the immigration decision; it only rules on the legality of the previous decision.
It is important to note that a judicial review is not an appeal of the merits of the decision; it is a review of the process by which the decision was made. Also, not all decisions are eligible for judicial review, and some may have to be appealed to the Immigration Appeal Division (IAD) instead, if such a right of appeal exists.
Given the complexity of the judicial review process and the strict deadlines involved, it is highly recommended to seek legal advice from an immigration lawyer who can help you understand your rights and the likelihood of success in your particular case.
