Applications for Leave & Judicial Review
When your refugee claim or any type of an immigration application is refused (whether inside or outside of Canada), you have the right to have that refusal “Judicially reviewed” by the Federal Court of Canada. There are 2 steps to this process: i) legal arguments must be prepared by the lawyer explaining why your case has enough merit to continue to an oral hearing (this is the “Leave” stage) and ii) if the Court determines that your arguments indeed have merit, a Leave Order will be issued and a date for Judicial Review (oral hearing) will be set.
Only an experienced and well versed lawyer can determine whether the written reasons issued by the decision maker contain any “reviewable errors” that would warrant an intervention by the Federal Court. The Court usually shows high deference to various decision makers and will grant a Judicial Review only if it can be shown that the reasons for the negative decision were not “justified, transparent and intelligible” and do not fall ”within the range of acceptable outcomes that are defensible in fact and law” (as per the seminal Dunsmuir decision). Please note that if successful on Judicial Review, the Court does not have the jurisdiction to overturn the decision; rather it will send the matter back for re-determination by a different Board Member or immigration officer.
The decision whether to file an Application for Leave and Judicial Review must be made reasonably quickly, depending on whether the decision in question was made inside or outside of Canada. Generally speaking, you have the following number of days to decide from the date you receive the negative decision:
15 days when refusal is issued by the Refugee Protection Division (RPD);
30 days when refusal is issued by a decision maker in Canada (H&C and PRRA applications), and
60 days when refusal is issued by a Canadian visa post abroad.
