Judicial Review requires permission of the Court in Canada

Learn what a Judicial Review Leave is

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If you recently applied for a visa or permit for Canada and suffered the impact of a rejection by the IRCC, do not be alarmed thinking that everything ended there, there is always a second chance with the resource known as Judicial Review, which is processed by the Federal Court to evaluate your case and detect if there were errors or unfounded decisions, but you have to know something else that is also part of the Judicial Review and is a previous step that gives green light or stops the process: it is theLeave for Judicial Review.

In a previous Canadian immigration blog post, I shared with you important information about this legal remedy that protects you and can restore your spirits while things are being reevaluated. Now, let's revisit this topic so that you can better understand it from the scenario of an application refusal and your review alternative.

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His visa was refused and he went to Judicial Review.

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Remember that Immigration, Refugees and Citizenship Canada (IRCC) is the government entity in charge of evaluating and deciding on applications for visas, work permits, permanent residence, among others. When the IRCC's decision is unfavorable to you, it is recommended that you consult an immigration lawyer to help you understand the details of the rejection. The attorney will most likely advise you to resort to a Judicial Review to challenge the decision because it may have been unfair or incorrect. 

Now, even that review to which you are entitled must go through a prior application for permission before it can proceed. Read on to find out who is responsible for Judicial Review!

Immiland Canada has ICAC-certified lawyers who can advise you. Contact us here.

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Who conducts the Judicial Review?

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The Federal Court is the body in charge of the Judicial Review of the decision made by the IRCC. Unlike an appeal, where the facts of the case are re-examined, the Judicial Review focuses on evaluating whether the decision was made fairly and in accordance with the law. That is, the court will not re-evaluate the merits of the application, but will examine whether there was an error in interpretation of the law, an abuse of power, or whether an incorrect procedure was followed, but this very important phase of your case depends on a leave or permission for the review to proceed.

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What is the Leave for Judicial Review?

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Leave to Apply for Judicial Reviewis a preliminary step in the judicial review process in Canada, because NOT all judicial review applications automatically proceed to a full hearing. So, as an applicant for judicial review, you must first obtain permission from the Federal Court to have your case read and examined in detail according to the law.

It means then that, when you file an application for review with the Federal Court, the first step is to ask for leave to proceed. From there, the court will evaluate your application to determine whether there is sufficient legal merit or whether serious issues are raised to warrant a full judicial review. 

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What is evaluated during the leave stage?

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During this stage, the Court reviews the documents and written arguments submitted by the applicant (and, in some cases, by IRCC). There is no oral hearing at this stage. The Court will consider whether:

1. There are serious reasons to question the legality of the decision taken by the IRCC.
2. The case presents a question of law or procedure that warrants further review.
3. The request is not frivolous and raises a reasonable argument about an error made in the decision.

If the Court concludes that the case has merit, it will grant permission, and the proceeding will move forward to a full hearing, where oral arguments will be presented.

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What happens if permission is not granted?

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If the Court decides not to grant permission for review, the process will end there. This means that the original IRCC decision remains in effect and will not be reviewed further. The denial of permission indicates that the Court did not find sufficient legal grounds to challenge the IRCC's decision. 

If you get to this point and you do not get the visa or the study or work permit, etc., do not get discouraged, sometimes it happens that you have to wait a little and try things again. Many people have obtained the visa after two or three attempts, the important thing is that the steps you follow in immigration are well guided from the beginning of your plan and that you rely on those who really know about immigration law because they are Canadian lawyers, regulated consultants or specialists in immigration law in Canada.

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Importance of a lawyer at this stage

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Obtaining permission for the review is a crucial step and is not always easy to achieve. It depends on whether your status in Canada can be that of a permanent resident, whether you can enter the country with your visa, whether you can work legally, among other things. That is why having a lawyer with experience in judicial reviews is very important, since the initial presentation must be persuasive and clearly argued, based on solid legal principles. Being advised by a legal professional with these skills will make all the difference in such a crucial process. Immiland Canada has regulated lawyers who can help you. 

Keep in mind that immigration to Canada is possible, but complex and fraught with red tape and decisions that can significantly affect your dreams of successfully entering the country. 

Thank you for reading to the end! We invite you to share this topic with family and friends who have received a denial on their application. Remember that the leave for review is a kind of filter that ensures that only cases with valid legal grounds advance to a full judicial review.

At Immiland Canada, we can make your case. Complete the form below if you believe you need to apply for a Judicial Review.

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With love,

Immiland