Introducing New Evidence at a Judicial Review

Judicial review is an area of law where representation is almost without exception necessary.  It is also an area of immigration law where consultants are prohibited from representing individuals. Although you should hire representation if you want to file an application for judicial review of an immigration decision, you should also understand the basics of judicial review.

The most basic principle is that during a Judicial Review you cannot introduce new evidence

Many individuals mistakenly think that they should apply for judicial review so that they can introduce new evidence before a judge.  However, as the purpose of judicial review is to determine whether an immigration officer’s decision was reasonable or correct, you cannot introduce any evidence that was not before the decision maker.

The law is clear that judicial review applications are to be conducted strictly on the evidence that was before the decision-maker, unless additional evidence pertains to questions of procedural fairness or jurisdiction.

As  the Federal Court in Chopra v. Canada,

There is considerable jurisprudence to the effect that only the evidence that was before the initial decision-maker should be considered by the Court on judicial review. These decisions are premised on the notion that the purpose of judicial review is not to determine whether or not the decision of the Tribunal in question was correct in absolute terms but rather to determine whether or not the Tribunal was correct based on the record before it. . . .

Now, this does not mean that one should simply not attempt to introduce new evidence.  Even if the Court will not officially consider the evidence, and even if the court will reject your evidence, there may be strategic reasons why you would want that judge to be aware of the evidence.

For example, in Castillo Afable v. Canada (Citizenship and Immigration), an application was rejected because of doubts that two people were related.  The applicant subsequently obtained DNA evidence which proved the relationship.  The lawyer in that case sought to introduce this evidence at judicial review.  While the Court officially stated that it could not consider that information, it is possible that the Court also had the DNA evidence in mind when it accepted the judicial review on other reasons.  This is suggested by the fact that the Court made reference to the fact that the applicant could now introduce the DNA evidence at the IAD.


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