Applications for Canadian citizenship that have been refused by the citizenship department may be appealed to the Federal Court within 30 days. These appeals proceed as applications for leave and judicial review.
This is a two-part process whereby the applicant first applies for “leave” meaning a hearing. The leave application is made by filing written submissions with the Court which will consider whether the applicant has an arguable case. If the Court grants leave then the judicial review will commence culminating in a hearing before a Federal Court judge.
The Judicial Review Hearing
At the judicial review hearing the applicant or their counsel will present their legal arguments before the judge. The citizenship department will be represented by their own lawyer who will oppose the appeal. After hearing all arguments the judge will typically render a decision in writing either granting or dismissing the judicial review application. If the judicial review is granted the usual remedy is for the case to be returned to the citizenship department to be redecided.
As a judicial review is not a full appeal no new evidence may be adduced and the Court is restricted to reviewing the decision of the citizenship authorities in light of the evidence that was before them. The Court will consider whether the decision in made in accordance with the legislation, is within the jurisdiction of the decision-maker, was fairly made, and is reasonable. In deciding the reasonableness of the decision the Court will afford the citizenship department considerable deference and will not interfere with the decision unless there is an obvious flaw in the citizenship official’s reasoning.
Challenging The Citizenship Application Rejection
The most common ground for the challenging of a citizenship application rejection is if there was some error in calculating the period of residency of the applicant. As applicants for Canadian citizenship must demonstrate that they have been physically present in Canada for at least three years out of the five-year period before they apply, the actual amount of time they have been in Canada can be a source of contention, especially when the applicant has travelled frequently. While previously it was possible in some cases to argue that a qualitative rather than a quantitative test should be applied when assessing residency in citizenship applications, through June 2015 amendments to the Citizenship Act Parliament clarified that physical presence was required in order to show residency for purposes of obtaining citizenship, and as a result it is no longer possible to argue that a qualitative approach should have been applied. As a result, the issue of the residency calculation usually boils down to deciding whether the citizenship authorities ignored or disregarded evidence of residency, or simply made a mathematical error when counting the applicant’s time in Canada.
Mandamus Applications in the Citizenship Context
Other grounds for appealing may include various issues of procedural fairness, issues related to misrepresentation, to language ability and taxation requirements, and where a citizenship application has been delayed, issues related to mandamus.
While most appeals of citizenship authorities seek certiorari, or the overturning of a citizenship decision, it is also possible to appeal to the Federal Court and seek mandamus, which is an order that a decision be made immediately. Mandamus can be sought where there has been a lengthy delay in the processing of the citizenship application that is the fault of the citizenship authorities and not the applicant. If the court grants the appeal, it will order the citizenship authorities to make an immediate decision in the citizenship application.
How We Can Help
Here’s how we can help you:
The Immigration Law Firm of Matthew Jeffery has over 20 years of experience and specializes in handling citizenship appeals with high success rates. To see if we can help you with your citizenship appeal, fill out our FREE Appeals Assessment form.