What is a Judicial Review and when should it be considered for IRCC decisions?

In the immigration process to Canada, not all Immigration, Refugees and Citizenship Canada (IRCC) decisions are favorable. You may find yourself in a situation where your application for a tourist visa, study visa, work permit (open, closed or PWGP), or permanent residency is rejected, leaving you with few "apparent" options for success; however, if you feel the decision was unfair or incorrect, there is a legal tool you could use, and this is the good news we give you in this article from our Immiland Canadian immigration information blog. 

I am referring specifically to the Judicial Review, a legal remedy available to any foreigner who is applying for a visa to Canada and requires a second chance in the evaluation of his or her case. Read this article to the end.

Let us begin by defining this resource and its application process.

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What is a Judicial Review?

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Judicial Review is a process in which a federal court acts to look in detail at the legality of a decision made by a government entity, in the case of Canada it is the IRCC. Attention to this fact: it is NOT an appeal in the traditional sense; that is, it does not reconsider the facts or evidence of the case, but rather it evaluates whether there was an error in the interpretation of the law, an abuse of authority, or a lack of fair procedure on the part of the official who made the decision. 

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When should I consider it?

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You may consider applying for Judicial Review if you believe that:

1. There was an error of law: if you think the IRCC officer misapplied the law or disregarded evidence you submitted.
2. There was a procedural error: if you feel that you were not given an opportunity to be heard or that the process was not fair.
3. The decision was unreasonable: if the decision appears to be based on grounds that are unclear or contradictory.

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How is a Judicial Review process conducted?

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The Judicial Review process begins with the filing of an application with the Federal Court of Canada. It is important to note that this process is subject to strict deadlines. 

Generally, the application must be filed within 15 days of receipt of the decision within Canada, or 60 days if the decision was made outside Canada.

Once the application is filed, the court will decide whether to grant permission for the review. If granted, a hearing will be held where the attorneys for both parties will present their arguments. Finally, the court will decide whether:

1. Confirms the decision of the IRCC,
2. revokes it, or 
3. returns it for reconsideration.

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Is it possible to request a Judicial Review on one's own or is the guidance of an attorney necessary?

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Sometimes, it is possible to do an immigration procedure in a simple way as long as you follow the steps indicated in the IRCC official website, but you have to be very careful with this choice, as you could lose time, money and, in the worst case, a new rejection due to a wrong procedure or receiving incorrect information from third parties who are not lawyers or regulated by the Canadian government. 

The best we can recommend is that, given how complex the Judicial Review process can be and the importance of successfully retaking your case, you seek the safe and reliable guidance of an experienced immigration law attorney, as they are the specialist who can help you identify the errors in the IRCC's decision, prepare a solid legal argument and, crucially, represent you in court, which will give you even more confidence and peace of mind.

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Immiland Canada Recommendations

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Remember that in many immigration cases and especially when the applicant is worried about a possible rejection, there are people who are not well informed about immigration rights and could lead you to make wrong decisions or even scam you. At Immiland Canada, we have a team specialized in immigration matters and we can guide your case safely. 

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We invite you to complete the following form if you consider that you need to apply for a Judicial Review.

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When faced with a visa refusal, remember to remain calm, Judicial Review is a powerful tool, but it must be used with care and under proper advice. If you are faced with an unfavorable IRCC decision and believe it was unfair, this option may offer you a second chance to achieve your immigration goal in Canada.

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‍With love,

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Immiland