Judicial Review is the appeal avenue of choice when your refused application does not grant a statutory right of appeal to the Immigration Appeal Division.
This is, for example, the case for Economic Class permanent residence applications, as well as inland spousal sponsorship applications. Additionally, decisions by the IAD can be judicially reviewed by the Federal Court.
Not all cases submitted to the Federal Court for judicial review will be heard by the court. This is because appellants must first request leave from the Federal Court to commence judicial review of the matter at issue – meaning the court has the discretionary power to decide whether to hear the matter. An application requesting leave and judicial review is submitted to the Federal Court, and a judge of the Federal Court determines whether to grant leave, usually without the need for the parties to appear. Only if and when leave is granted will the judge set a hearing date to hear the judicial review proceeding. Hearing dates are generally set 30 to 90 days after the date leave was granted. If the request for leave is refused, the case will not be considered by the court.
At the court hearing, both parties will be afforded an opportunity to provide oral submissions. The judge may either render their decision from the bench, or reserve judgment. The ability to appeal decisions of the Federal Court to the Federal Court of Appeal is extremely limited. The decision of a Federal Court judge can only be appealed if that judge certifies a “serious question of general importance”. The practical effect is that judicial review decisions by a Federal Court judge are often final.
If considering an appeal by way of judicial review, it is critical you receive proper and timely legal advice as soon as you receive notification that your application has been refused. Strict timelines are in place for filing an application for leave and for judicial review. Depending on the matter, the deadline for filling a leave application will be either 15 or 60 days from the date you receive notification of the decision. Additionally, not all refusals are suitable for judicial review, nor stand a strong chance of success.
It is important to note that the IAD and Federal Court operate on very different set of rules, each with their own filing deadlines and procedures. Generally, IAD appeals must be filed within thirty or sixty days, depending on the matter, and Federal Court appeals must be filed within fifteen or sixty days after the applicant receives a refusal.
For this reason, if you receive a refusal on any immigration application, we suggest you immediately contact one of our experienced lawyers to be advised on the following issues:
Remember, waiting to contact an immigration lawyer after receiving a refusal can be a costly mistake in light of the strict filing deadlines. If you have an application that has been refused or have been ordered to leave Canada, always keep in mind that in most cases legal options exist that can resolve your immigration matters, no matter how daunting they may seem.
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