Applications for Leave & Judicial Review

When a refugee claim or any type of an immigration application is refused (whether inside or outside of Canada), the applicant has the right to have that refusal “Judicially reviewed” by the Federal Court of Canada. Generally speaking (with few exceptions), an automatic stay of removal is granted upon application for judicial review being filed.

There are 2 steps to this process: i) legal (written) arguments must be prepared by the lawyer explaining why a given case has enough merit to continue to an oral hearing (this is the “Leave” stage) and ii) if the Court determines that the presented arguments indeed have merit, a Leave Order will be issued and a date for Judicial Review (oral hearing) will be set.

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, these timelines apply from the date a negative decision is received:

  • 15 days when refusal is issued inside Canada, and
  • 60 days when refusal is issued outside Canada

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).

It is important to note that not agreeing with a decision is not – in and of itself – a basis upon which to apply for Judicial Review. Such a request only makes sense if the reasons for the negative decision reveal clear errors of fact or law.

Please note that if successful on Judicial Review, the Court does not have the jurisdiction to overturn the impugned decision; rather it will send the matter back for re-determination by a different Board Member or immigration officer.