JUDICIAL REVIEW TO FEDERAL COURT
In certain instances where appeals or decisions related to immigration or refugee cases are denied, individuals have the option to bring their case before the Federal Court for review by a judge. This process is known as seeking leave and judicial review.
Overview of Seeking Leave & Judicial Review
Seeking leave and judicial review at the Federal Court differs from an appeal, as it generally does not allow for the introduction of new evidence. Moreover, individuals must obtain authorization (leave) from the Court to have their case heard.
The test for granting leave is whether the applicant raises a serious issue that warrants consideration, specifically, whether there is a reasonably arguable case. It is essential to demonstrate substantial errors in the decision under review and that, based on the evidence, the case has merit.
The Federal Court provides resources to help individuals understand the application process.
Steps for Seeking Leave & Judicial Review at the Federal Court
Initiating Proceedings: The individual contesting an immigration or refugee decision, known as the applicant, must commence proceedings within fifteen days for matters arising in Canada or sixty days for matters outside Canada.
Filing Application Record: Within thirty days, the applicant submits an Application Record containing written arguments outlining the issues with the decision.
Government Response: The government has thirty days to file its memorandum of argument in response. The applicant has ten days to reply after the government’s submission.
Leave Determination: A judge reviews the submissions to decide whether the matter should proceed to a hearing (leave).
Hearing: If leave is granted, a hearing date is scheduled for the parties to present arguments before a judge regarding the decision’s merits.
Settlement: Parties may opt to settle the matter at any time. The Court encourages settlement through initiatives such as a settlement pilot project.
The standard applied by the Court depends on whether a procedural fairness argument is raised or if the Court is asked to review the decision maker’s assessment of the case.
Important Considerations
It is advisable for individuals seeking leave and judicial review to explore other options before resorting to the Federal Court, including any available appeals.
If you have been denied in an immigration or refugee matter, consider booking a consultation with us to explore your options.
Please note that this is general information and should not be construed as legal advice.
