Immigration Appeals

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If your immigration application has been denied, you can ask for a review of the decision. This "appeal" process is known as "Judicial Review".

 

Judicial review provides the means for the Courts to oversee decisions of the Minister of Citizenship and 

Immigration (C&I), the Minister of Public Safety and Emergency Prepardness (PSEP) and the Ministers’ officials and to ensure that decisions made under the IRPA are in accordance with the law.

 

The creation of a federal supervisory court is authorized by Section 101 of the Constitution Act, 1867. Pursuant to that provision, the Federal Court of Canada was constituted on June 1, 1971. More detail about the history of the Federal Court can be found on its website:


http://www.fct-cf.gc.ca


The Immigration and Refugee Protection Act confers specific jurisdiction on the Federal Court to
review decisions relating to immigration and refugee protection matters. 

 

Judicial review matters must be dealt with originally in the Federal Court. All applications for judicial review of immigration and refugee matters require leave of a judge of the Federal Court [section 72 of the Immigration and Refugee Protection Act].

 

The application for leave to seek judicial review must be filed and a certified copy served on the respondent by the applicant within 15 days of notification of the decision or order for a matter arising in Canada, or within 60 days for a matter arising outside Canada [paragraph 72(2)(b) and Rules 4(2) and 7(1)]. Proof of service on the other parties must be filed within 10 days of service [Rule 7(2)]. For proof of service in the Federal Court and Federal Court of Appeal in general, refer to Federal Courts Rule 146.

 

Form of Application

 

An applicant should follow Form IR-1 in the Schedule to the Rules, entitled Application for Leave and for Judicial Review, of this booklet, and should include:

 

  • full names of the parties;

  • date and details of the matter in which relief is sought and the date of notification;

  • name of the tribunal and names of members if more than one person;

  • tribunal's file number, if any;

  • precise relief to be sought;

  • grounds for relief sought, including reference to any statutory provision or rule to be relied on;

  • proposed place and language of hearing of the application for judicial review;

  • whether the applicant has received the written reasons of the tribunal; and

  • the signature, name, address and telephone number of the individual solicitor filing the application, or of the applicant who is acting in person.

 

[This information is contained in Rule 5.]

 

Should an extension of time be needed, the applicant must request it in the application for leave [paragraph 72(2)(c) and Rule 6(1)]. Rule 23 states that the fee to file an application for leave is $50.

 

Notice of Appearance

 

Pursuant to Rule 8(1), the respondent must file Form IR-2, Notice of Appearance, together with proof of service, within 10 days of service of the application for leave.

 

Tribunal's Decision and Reasons

 

If the applicant has indicated in the instituting application that written reasons of the tribunal have not been received, the Federal Court Registry will send a letter to the tribunal in Form IR-3, entitled Request to Tribunal
[Rule 9(1)].

 

The tribunal will then send copies of the decision and written reasons to the parties and the Federal Court Registry, or an appropriate written notice if no reasons were given. The applicant will be deemed to have received the written reasons, or the notice, on the tenth day after it was posted by the tribunal [Rule 9(2) and (4)].

 

Perfecting the Application for Leave

 

The time limits for completing an application for leave are set out in Rule 10(1):

 

  • where the applicant has the written reasons, within 30 days; or

  • where the Federal Court Registry has requested the written reasons, within 30 days of their receipt or receipt of the notice of no reasons.

     

    The applicant must file, together with proof of service on every respondent, a record with the following, on consecutively numbered pages, in this order:

 

  • the application for leave;

  • the subject decision or order, if any;

  • the written reasons of the tribunal, or the notice of no reasons;

  • one or more supporting affidavits verifying the facts relied on by the applicant in support of the application; and

  • a memorandum of argument with written submissions of the facts and law relied upon.

 

[This information is found in Rule 10(2).]

 

Respondent's Affidavits and Memorandum of Argument ─ Rule 11

 

The respondent has 30 days from the date of service of the applicant's record to file, with proof of service on the other parties, one or more affidavits and a memorandum of argument.

 

Affidavits

 

Rule 12(1) refers to the content of affidavits filed in support of an application. Cross-examination of a deponent on an affidavit will not be permitted before leave is granted to commence an application for judicial review unless an order of the Federal Court is obtained [Rule 12(2)]. For affidavits in the Federal Court and Federal Court of Appeal generally, refer to Federal Courts Rules 80 to 86.

 

Reply Memorandum ─ Rule 13

 

The applicant has authority to file a memorandum of argument in reply, with proof of service on the respondent, within 10 days of service of the respondent's memorandum.

 

Disposition of Application for Leave

 

An  application requesting leave to commence an application for judicial review is  determined without the personal appearance of the parties, unless a judge of  the Federal Court otherwise orders [paragraph 72(2)(d)].

 

If the  applicant has applied for an extension of time, it is disposed of at the same time as the application for leave and on the basis of the same materials as the application for  leave [Rule 6(2)].

 

The Court  must comply with the provisions of the Act [paragraph 72(2)(d)] which  require any applications for judicial review under the Immigration  and Refugee Protection Act to be disposed of without delay and in a summary way.  Therefore, a judge may render a decision on an application for leave without  further notice to the parties when:

 

  • a party has not acted within the  time limits required for the service and filing of a document, or 

  • the applicant's reply memorandum  has been filed, or the time to do so has expired [Rule 14(1)].

 

If it is  found that further material from the tribunal is necessary in order to reach a  decision on the application for leave, the judge may set out in an order the  documents to be produced and filed. This order will then be transmitted to the  tribunal by the Federal Court  Registry [Rule  14(2) and (3)]. After receipt of such an order, the tribunal will send a  certified copy of the materials requested to each of the parties and two copies  to the Federal Court Registry [Rule 14(4)].

 

There is no right to appeal a decision on an application for leave [paragraph 72(2)(e)].

 

JUDICIAL REVIEW WHERE LEAVE HAS BEEN GRANTED

 

If leave is  granted, all material filed on the application for leave will be retained by  the Federal Court Registry for the use of the Court at the hearing of the application for judicial review [Rule  16]. At this stage the judge will fix a place for hearing the judicial review  proceeding and set a date that is between 30 and 90 days from the date of the  order granting leave, unless the parties agree on an earlier time [paragraphs  74(a) and (b)].

The order of  the Federal Court granting leave will include:

 

  • the place, language and date for  hearing of the judicial review application;

  • the time limit within which the  tribunal is to send copies of its record under Rule 17;

  • the time limits within which  further material, if any, including affidavits, transcripts of cross-examinations, and memoranda of argument are to be served and filed;

  • the time limits within which  cross-examinations, if any, on affidavits are to be completed; and

  • any other matter that the judge  considers necessary or expedient for the hearing of the application for  judicial review [Rule 15(1)].

 

The Federal Court Registry will send a copy of this order to the tribunal and it will be  considered to have been received by the tribunal on the tenth day after mailing  [Rule 15(2) and (3)].

 

Obtaining Tribunal's Record ─ Rule 17

 

Upon receipt  of an order granting leave, the tribunal is required to prepare a record  containing the following documents, in the sequence given, on consecutively numbered pages:

 

  • the decision or order in respect  of which the application is made and the written reasons given therefore; 

  • all papers relevant to the  matter that are in the possession or control of the tribunal; 

  • any affidavits or other documents filed during any such hearing; and 

  • a transcript, if any, of any  oral testimony given during the hearing, giving rise to the decision or order  or other matter that is the subject of the application.

 

The tribunal will then send certified copies  to the parties and two copies to the Federal Court Registry, in accordance with Rule 17.

  

Hearing of Judicial Review  Application

 

The Federal Court will  hold a hearing of the judicial review application at the time and place set out  in the order [Rule 15]. The hearing must be held no sooner than 30 days and no  later than 90 days after leave was granted, unless the parties agree to an  earlier date [section 74]. The hearing provides the parties with an opportunity  to present oral submissions with respect to the judicial review application.

  

Disposition of Application for Judicial Review

 

Decisions on  judicial review applications concerning immigration and  refugee matters may  not be appealed to the Federal Court of Appeal unless the judge of the Federal  Court has certified that a serious question of general importance is involved  and has stated the question [paragraph 74(d)]. At the end of the hearing  of the review application, the Federal Court judge will give the parties an  opportunity to specify the question to be considered for certification [Rule  18]. (A partial status list of certified questions is maintained on the Federal Court website.)

 

The judgment on the judicial review application will then be delivered from the bench or reserved.