One of the confusing aspects of a judicial review practice is determining how many applications are needed.
In Chambers v. Canada (Citizenship and Immigration), for example, the applicant filed one judicial review to seek review of i) an immigration Officer’s decision to prepare a report pursuant to subsection 44(1) of the Immigration and Refugee Protection Act (the “IRPA“) to the Minister of Public Safety and Emergency Preparedness’ delegate, (ii) the decision of the Minister’s delegate pursuant subsection 44(2) of the IRPA to refer the applicant, to an admissibility hearing before the Immigration Division of the Immigration and Refugee Board, and (iii) the decision of the Immigration and Refugee Board to order the applicant’s removal from Canada.
The Department of Justice argued that this was improper. However, Justice Bell disagreed, writing that:
The Applicant counters that this same issue was raised in Clare v Minister of Citizenship and Immigration, 2016 FC 545,  FCJ no 513 [Clare]. In Clare, O’Reilly, J. disagreed with the Minister’s contention. He concluded that, “[w]hile it was open to Mr. Clare to seek judicial review of those other decisions, it was not necessary to do so in order to challenge the [Immigration Division’s] decision on admissibility”. While O’Reilly, J. acknowledged that in some cases applicants had challenged multiple decisions through separate applications, he did not interpret them as “requiring applicants to do so in order to challenge the ID’s decision on admissibility”.
Mr. Chambers contends this issue has already been disposed of by the judge who granted leave. I agree. Leave was granted on the application as filed, without any limitation. The question is therefore moot. However, by way of obiter, I would state that I agree with the approach adopted by O’Reilly,Read more ›
Last updated on May 17th, 2019
Where a visa application has been refused and an applicant is convinced that the decision is unreasonable then it may be advisable to file an Application for Leave to Commence Judicial Review with the Federal Court of Canada (the “Federal Court” or the “Court”).
The Federal Court has the jurisdiction to review the decisions of visa officers. The Court will determine whether an immigration officer committed any reviewable errors that should result in the decision being set aside. Reviewable errors include errors of fact, law, or breaches of procedural fairness. If an applicant succeeds in Federal Court, then the Court will order that the immigration officer’s decision be set aside, and typically that the application be reconsidered by a different officer.
Usually, a successful judicial review will ultimately result in a positive decision from the second visa officer. However, this is not always the case. Furthermore, as the Federal Court of Appeal determined in Lee v. Canada (Minister of Citizenship and Immigration), there is no obligation on the second immigration to specifically refer to the order of the Court and provide reasons as to how and why the second decision differs from the first.
In deciding whether to submit a judicial review application it is important to note that the Federal Court will not review or accept new evidence, but, rather, determine if an officer made an error based on the information that was before them.
As well, pursuant to the Federal Court of Appeal decision in Maple Lodge Farms Ltd. v Canada (Food Inspection Agency), 2017 FCA 45, even where a visa officer or tribunal makes a mistake a judicial review may still not succeed if ordering a redetermination would be an exercise in futility.Read more ›
Last updated on October 20th, 2020
An interesting aspect of judicial review is that provincial courts show much more deference to provincial nomination programs than the Federal Court does of visa officers. Here are some key passages of two British Columbia Provincial Nomination Program judicial reviews.
This case essentially stands for the proposition that officers can look beyond an offer of employment to determine whether a proposed job offer meets BC PNP program requirements. Justice Bowden wrote:
In determining whether an applicant met the criterion of PNP, if a decision maker relied only upon a future offer of employment, that might well be unreasonable. Not only would that ignore the factor of past employment over a nine month period but also an offer of employment in the future is not an assurance that the criterion will be met.
In this case Madam Justice E.A. Arnold-Bailey provided a useful summary of existing jurisprudence on provincial nomination judicial reviews. She wrote:
Moving from more general statements of principle to specific cases more closely aligned to the present case, I note that among the cases referred to by the Respondent are Jiang and Baba. Both these cases deal with provincial nominee programs in other provinces, Manitoba and New Brunswick respectively. In neither case was the denied applicant successful.
Jiang was an appeal from an order of the application judge refusing to quash a decision of the Manitoba Provincial Nominee Program for Business (the “Program”). The appellant, who applied under the economic class pursuant to the business stream,Read more ›
The first reported British Columbia Supreme Court decision involving the British Columbia Provincial Nomination Program has gone to the BC PNP.Read more ›
Section 18.1(4) of the Federal Court Act, RSC 1985, c F-7, states that the grounds for judicial review are:
The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
Based its Decision or Order on an Erroneous Finding of Fact in a Perverse or Capricious Manner
In Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319, Justice Gleason provided the following guidance on interpreting s. 18.1(4):
In the seminal case interpreting section 18(1)(d) of the FCA, Rohm & Haas, Chief Justice Jacket defined “perversity” as “willfully going contrary to the evidence” (at para 6). Thus defined, there will be relatively few decisions that may be characterized as perverse.
The notion of “capriciousness” is somewhat less exacting. In Khakh v Canada (Minister of Citizenship and Immigration), (1996), 116 FTR 310,  FCJ No 980 at para 6, Justice Campbell defined capricious, with reference to a dictionary definition,Read more ›