What should I do if my immigration application is refused?
Refused immigration applications can be appealed
Almost any decision made by the immigration, citizenship, or refugee authorities may be challenged by way of Judicial Review in the Federal Court of Canada. As examples, a decision made by a visa officer to refuse an Express Entry application, or a decision of a citizenship judge to reject a Citizenship application, are both reviewable by the Federal Court. This means that the Court will review the decision to decide whether it was lawfully made, and can overturn the decision if they find a legal error.
Exceptions to this rule are types of cases that already have a legal right of appeal, for example a decision of the immigration authorities to reject a spousal sponsorship application. In this instance, the sponsor has a right of appeal to the Immigration Appeal Division and does not need to seek judicial review in the Federal Court.
How Long Do I have To Appeal?
An application for leave and for judicial review to the Federal Court must be made within strict deadlines, generally 15 days of a refusal made in Canada, or 60 days of a refusal made outside Canada, so it is important to act promptly to preserve your appeal rights.
Procedure at the Federal Court
An application for leave and for judicial review is a two-step application.
- First, the Court will review submissions in writing and decide whether to grant “leave” which is a hearing. The Court will only grant leave if it believes that the applicant has an arguable case that might succeed. If leave is not granted the appeal will be dismissed without reasons.
- If leave is granted, the second part of the application is the judicial review, which entails a hearing before a judge. The hearing will provide the applicant or their counsel with an opportunity to present their legal arguments orally before a judge. The immigration department will have their own lawyer who will oppose the judicial review and argue that the case should be dismissed. After the hearing the judge will render his or her decision deciding whether the application is granted or not, and providing reasons for the decision. If the Court grants the application, it will typically remit the matter back to the original tribunal to be re-decided. In this typical type of judicial review the applicant seeks an order of certiorari, which is a Latin term for an order directing the redetermination of a decision.
Issues the Court will consider
A judicial review application is not a full appeal in that the Court is only empowered to review the decision of the inferior tribunal in light of the evidence before it, and decide whether the decision was made in accordance with the law. If the Court finds a reviewable error, it will typically overturn the decision and return the case to the same tribunal to be re-decided by a different decision maker. The Court does not have the authority to substitute its own decision for that of the tribunal. The Court is also limited to considering the evidence that was actually before the lower tribunal and may not consider new evidence.
Issues the Court will consider include whether the decision-maker acted legally and within its jurisdiction, whether the decision was made using a fair procedure, and whether the decision was reasonable in light of the evidence. When deciding the reasonableness of a finding of fact or mixed fact and law, the Court will give the lower decision-maker considerable deference, which is to say that the Court will only intervene if the decision is obviously flawed. On the other hand, if the Court finds that the lower tribunal acted in a way that was procedurally unfair, it owes no deference and the decision will necessarily be overturned. The reasonableness and the fairness of an administrative decision are generally the main issues for consideration in most judicial review cases.
Further appeals available at the Federal Court of Appeal and the Supreme Court of Canada
If a Federal Court judicial review is unsuccessful there is in some cases a further appeal to the Federal Court of Appeal. This requires that the Federal Court judge in his or her decision certifies a question of general importance for the Court of Appeal to consider. A question will only be certified if it relates to the consideration of a novel legal issue that is of importance to the Courts, and this issue is determinative of the Federal Court case. As a result, it is only a few rare cases where the Federal Court will certify a question for consideration by the Federal Court of Appeal. If a question is certified, it is up to one of the parties to actually initiate the appeal process. The appeal entails a hearing before a panel of three judges who will decide the issue that has been certified, and any other relevant issues. The standard of review is palpable and overriding error for factual findings and correctness for issues of law.
A decision of the Federal Court of Appeal can be subject to an appeal to the Supreme Court of Canada. No certified question is required to make such an appeal, however the Supreme Court has a leave requirement before an appeal can be made. An application for leave to appeal at the Supreme Court must demonstrate the existence of a legal issue of national importance. As a general rule, the Supreme Court will only consider cases that raise important legal issues that are broadly applicable nationally. As a result, obtaining leave to appeal is rare. If leave is granted and the appeal proceeds, the appeal will be heard by a panel of up to nine judges. The decision will be the final word by the courts on the legal issues decided on and will be binding on all lower courts and tribunals.
The Importance of a Lawyer’s role in a judicial review case
As judicial review cases entail written submissions in order to gain leave, then the attendance at a Court hearing to argue the legal issues, this type of case is generally handled in entirety by a lawyer with experience in immigration litigation before the Federal Court. While the Court will allow self-represented applicants, in practice the complexity of the process and the relevant jurisprudence will prove daunting to any non-lawyer who attempts to proceed to court without representation. It is therefore highly recommended to use the services of an experienced lawyer when seeking judicial review.
It should also be considered that litigation before the Federal Court is an adversarial process and that the immigration department will have its own lawyer to defend its decision before the Court. The immigration department’s lawyers are generally highly experienced and so it is necessary for a litigant to have their own experienced lawyer in order to have equal chances of success. It is not necessary for the applicant to be in Canada or to appear before the Court in person, the case can be managed entirely by the Canadian lawyer, including any appearances at the Court.
The Law Office of Matthew Jeffery has over 20 years of successful experience litigating judicial review applications at the Federal Court. We specialize in complex cases.
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