Converting from Judicial Review to an Action

Meurrens LawImmigration Trends

Clients often ask me why federal court actions are limited to judicial reviews.  They want to know why it is that they can introduce new evidence and call witnesses at the Immigration Appeal Division, an administrative tribunal, but not in court.

There are numerous reasons why federal court actions are limited to judicial review.

The first is because immigration decisions take place in the context of administrative law.  Because the court is simply reviewing the reasonableness of an administrative tribunal’s decision (be it a visa officer or the Immigration Appeal Division), it is not necessary to hear fresh evidence.  The second is to facilitate access to justice and avoid unnecessary cost and delay.  The third is that many people who would be called as witnesses in a normal action are not eligible to enter Canada.  Finally, applicants are always able to re-apply.

Converting to an Action

Although federal court actions for immigration decisions generally occur in the context of judicial review, s. 18.4(2) of the Federal Court Act provides that the court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.

Section 18.4(2) is a response to concerns that judicial review does not always provide appropriate procedural safeguards where declaratory relief is sought.  It addresses not only the procedural shortcomings of an application, but also the remedial ones including the inability to claim damages on judicial review.

There are no limits on the considerations which may be taken into account in deciding whether to allow a judicial review application to be converted into an action.  The test of whether to convert to an action is whether affidavit evidence will be adequate, and not whether trial evidence might be superior.

Examples of Cases that were Converted

As shown below, the facts of a case must be particularly spectacular for an immigration judicial review to be converted into an action.

Sivak v. Canada (2011 FC 402)

  • There were serious concerns of institutional bias.  The rules of cross-examination of affidavits had not produced the evidence that was required to determine whether there was such a bias.  Judicial review did not contain any procedures to address this issue.