If a foreign national has received a refusal on their permanent residence application, on their temporary residence application, or if a Sponsor has received a refusal under the Spouse or Common-Law Partner in Canada Class or a refusal by the Immigration Appeal Division, they may seek to have the refusal reviewed by the Federal Court of Canada.
Filing an application for leave and for judicial review with the Federal Court of Canada is very complex, and there are strict timelines that need to be met. Only a lawyer (and not a registered immigration consultant) can apply for judicial review on behalf of a foreign national.
Applying for leave and judicial review with the Federal Court of Canada is a two stage process:
- An application for leave must first be filed, whereby it must be demonstrated that a reviewable error was made by decision-maker, or that the decision was not reasonable or fair in the circumstances. At this stage, there are no oral arguments presented. All evidence and arguments must be presented in writing.
- If leave is granted, then the application for judicial review will be heard. At this stage, oral arguments are presented to explain to the Federal Court judge why the decision was wrong.
Not all applications for leave and judicial review will be heard in front of a judge. Most applications are refused to be heard at the leave stage. If an application for leave is not granted, no reasons are provided. If leave is not granted, it means that the case will not be heard in front of a judge.
If a foreign national, currently subjected to a removal order, is requesting leave and judicial review of a decision made by the Immigration and Refugee Board, the Federal Court will put the removal order on hold until a decision is made on the application. If the Federal Court does not grant leave, or if the application for judicial review is dismissed, a foreign national has 30 days to leave Canada.
If the Federal Court grants the judicial review, the file will be returned to the Visa Office or Case Processing Centre for a new decision, or back to the Immigration and Refugee Board for a new hearing.
It is important to keep in mind that even if the Federal Court grants the judicial review, there is no guarantee that a foreign national will receive a positive outcome when their file is sent back to the Visa Office or Case Processing Centre. If the file is sent back to the Immigration and Refugee Board, it is a de novo hearing, meaning it is with a new Board member.