When 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) 2004 FCA 143, there is no obligation on the second immigration officer to specifically refer to the order of the Court in the judicial review and provide reasons as to how and why the second decision differs from the … Read More
Judicial Reviews of BC PNP Decisions
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. Chaudan v. British Columbia (Ministry of Jobs, Tourism and Skills Training), 2016 BCSC 2142 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. Raturi v. British Columbia, 2017 BCSC 9 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 … Read More
How many Judicial Reviews?
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, [2016] 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 … Read More
Grounds for Judicial Review – Findings of Fact in a Perverse or Capricious Manner
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, … Read More