Judicial Review

Judicial review is a crucial legal mechanism in Canada that ensures the fairness, legality, and transparency of decisions made by government and administrative bodies. If you believe a decision has wronged you, filing a judicial review application with the Federal Court of Canada provides an opportunity to challenge that decision. Judicial review serves as a pathway to accountability and justice, particularly in cases involving immigration, refugee claims, and other administrative matters. 

What is Judicial Review? 

Judicial review is a legal process through which the Federal Court assesses whether decisions made by government officials or administrative bodies comply with the law. Unlike an appeal, which re-examines the entire case, judicial review focuses on determining whether the decision was reasonable and legally sound. 

In Canada, judicial review plays a significant role in immigration and refugee cases. For example, if your visa, permanent residence, or refugee claim application is denied, you may be able to request a judicial review of the decision. Key features of judicial review include: 

• It is not an automatic right; individuals must first seek leave (permission) from the Federal Court. 

• It does not re-examine facts or evidence but focuses on legal errors and procedural fairness. 

• The Federal Court has the authority to overturn decisions and send them back for reconsideration. 

Grounds for Judicial Review 

Not all decisions are eligible for judicial review. Applicants must demonstrate that the decision was flawed. Common grounds for judicial review in Canada include: 

Procedural Fairness: 

• The decision-maker failed to give the applicant a fair opportunity to present their case. 

• The decision-making process lacked transparency. 

• The decision-maker did not provide adequate reasons for the decision. 

Errors in Law: 

• The decision-maker misinterpreted or misapplied the law. 

• The decision was based on incorrect legal principles or ignored relevant legal provisions. 

Factual Errors: 

• The decision-maker relied on incorrect or misleading information. 

• Key facts or evidence provided by the applicant were overlooked. 

Abuse of Discretion: 

• The decision was unreasonable, arbitrary, or biased. 

• The decision-maker exceeded their legal authority. 

By citing one or more of these grounds, applicants can argue that the decision violated principles of fairness and justice. 

Staying in Canada During Judicial Review 

If your immigration or refugee claim is denied, you may wonder if you can remain in Canada while the judicial review is underway. Generally, applying for judicial review does not automatically prevent removal from Canada. However, there are steps you can take to stay in the country during the review process: 

1. Apply for a Stay of Removal: 
   You can request a stay of removal from the Federal Court. If granted, this order halts your deportation until the judicial review is resolved. 
2. Apply for a Temporary Resident Permit (TRP): 
   A TRP allows you to stay in Canada for a specified period while your judicial review application is being processed. 
3. Seek Legal Representation: 
   Working with an experienced legal representative increases the likelihood of a successful outcome and ensures your stay application is handled effectively. 

It is crucial to act promptly, as delays in filing may impact your ability to remain in Canada during the judicial review process. 

Steps to Start Your Judicial Review Application 

To maximize your chances of success, it is essential to follow the judicial review process correctly. Here are the key steps: 

Obtain Leave for Judicial Review: 

• The first step is to apply for leave from the Federal Court. This application must include a written explanation of why the decision should be reviewed. 

File on Time: 

• If you are in Canada, you must file the application within 15 days of the decision. If you are outside Canada, the deadline is 60 days. 

Submit Required Documents: 

• Ensure all relevant documents are included, such as the original decision, supporting evidence, and a detailed affidavit outlining your case. 

Attend the Hearing: 

• If leave is granted, the court will schedule a hearing. This is your opportunity to present your case and argue why the decision should be overturned. 

Await the Court’s Decision: 

• The Federal Court will review the case and issue a decision. If successful, the original decision may be overturned, and the case may be sent back for reconsideration. 

Navigating the judicial review process can be complex, so it is vital to work with experienced professionals who understand Canadian administrative and immigration law. 

Potential Outcomes of a Successful Judicial Review 

A successful judicial review can lead to significant outcomes that benefit your case: 

1. Decision Overturned: 
   The Federal Court may set aside the original decision and instruct the administrative body to reconsider the case, ensuring the new decision is fair and lawful. 
2. Reassessment: 
   The case may be sent back for a fresh assessment, giving applicants another opportunity to present their arguments and evidence. 
3. Improved Procedural Fairness: 
   A successful judicial review can lead to more transparent and equitable decision-making processes in the future. 
4. Avoiding Removal: 
   In some cases, a successful judicial review may prevent your removal from Canada, allowing you to remain while your case is being reviewed. 

While a successful judicial review ensures the decision-making process is fair and lawful, it does not guarantee a favorable outcome on the merits of your case.