Understanding Judicial Review

13th Jan 2017 Comments Off on Understanding Judicial Review

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.

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Standard of Review in Refugee Appeal Division Hearings

22nd Aug 2014 Comments Off on Standard of Review in Refugee Appeal Division Hearings

On December 15, 2012, the Refugee Appeal Division (the “RAD“) began considering appeals against decisions from the Refugee Projection Division (the “RPD“) to allow or reject refugee claims.  According to the Immigration and Refugee Board of Canada’s website, the steps to a RAD appeal are:

  • Once you receive the written reasons for the decision from the Refugee Protection Division, you have 15 days to file a Notice of Appeal.
  • You have 30 days from the day you received your written reasons for the RPD decision to perfect your appeal by filing an Appellants Record.
  • The Minister may choose to intervene at any point in the appeal.
  • The RAD Member makes a decision on your appeal. In most cases, this decision will be provided to you no later than 90 days after you have perfected your appeal, unless an oral hearing is held.

Almost immediately there was uncertainty over what the role of the RAD was.  The RAD began operating under the assumption that it would review RPD decisions using the reasonableness standard, and its members began stating that the following principles governed its appeals:

  • that deference is owed to RPD findings of fact and questions of mixed law and fact;
  • that deference is owed to the RPD where the issue in a claim is factual;
  • that the role of the RAD was to ensure a fair and efficient adjudication and that refugee protection be granted where appropriate. As such, the RAD can substitute the RPD’s determination with its own;
  • that in some cases the RAD, in order to bring finality to the refugee process,

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Court Certifies Question on Judicial Review of 117(9)(d) Refusals – [Updated August 6]

6th Aug 2014 Comments Off on Court Certifies Question on Judicial Review of 117(9)(d) Refusals – [Updated August 6]

The Federal Court (the “Court“) in Habtenkiel v. Canada (Citizenship and Immigration), has certified a question that if answered in the affirmative would seem to pretty much shut the door on humanitarian & compassionate (“H&C“) appeals of s. 117(9)(d) refusals.  The certified question is:

In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration)2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227?

That question is long and confusing, but lets break it down.

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PSLRB Rules CIC Bargaining with PAFSO in Bad Faith

17th Sep 2013 Comments Off on PSLRB Rules CIC Bargaining with PAFSO in Bad Faith

As the Professional Association of Foreign Service Officers (“PAFSO”) strike enters its fifth month, the Public Service Labour Relations Board (“PSLRB”) has ruled that Citizenship and Immigration Canada (“CIC”) is bargaining with PAFSO in bad faith.  The PSLRB decision can be found here.

CIC has filed a judicial review application of the PSLRB decision.

There appears to be no end in sight to the PAFSO strike.  However, by now most individuals who frequently interact with CIC have likely realized that many applications are continuing to be processed, and that there are certain steps that can be taken to minimize the impact of the PAFSO job action.  Indeed, as the University of Toronto’s Varsity Newspaper reported:

For students, the PAFSO strike practically seems to have caused, at most, a limited problem. Visas, while sometimes delayed, are not being withheld with any significant regularity, and in fact seem to be getting processed more efficiently than ever.

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Skilled Worker Non-Processing Letters Going Out

Skilled Worker Non-Processing Letters Going Out

18th Apr 2012 Comments Off on Skilled Worker Non-Processing Letters Going Out

And so it begins.  Citizenship and Immigration Canada has begun sending letters to Federal Skilled Worker Applicants who applied prior to February 27, 2008, that their applications will not be processed, and that they will soon be contacted regarding a refund.

Regardless of what one thinks of the merits of cancelling the backlog (I am sympathetic to both sides’ arguments), the way in which the Government of Canada is executing its decision to cancel the applications is problematic.  Indeed, I believe that the government is acting in a way that will lead to court intervention.

In brief, the government is cancelling these applications without having yet passed any legislative changes permitting them to do.  The Immigration and Refugee Protection Act and its Regulations still state that the affected applicants are eligible to immigrate to Canada.

From what I can tell, the Minister is currently governing through press release.  Ironically, the press release notes that the cancellation and refund of the above applications will occur as a result of “proposed legislation”.

http://www.cic.gc.ca/english/department/media/releases/2012/2012-03-30a.asp

The proposed legislation has not yet been introduced either in the House of Commons or in the Canada Gazette. Despite that, Citizenship and Immigration Canada is already cancelling applications.

Press releases cannot trump statute, and I predict an upcoming wave of successful litigation.

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Judicial Review of Refugee Decisions

23rd Jan 2011 Comments Off on Judicial Review of Refugee Decisions

There are few things more devastating for a refugee claimant than when the Refugee Protection Division rejects your claim.  At that point, you essentially have two main options: make a pre-removal risk assessment application or seek judicial review.

The objective of a judicial review is to convince a judge that the Refugee Protection Division’s rejection of your claim was either unreasonable or incorrect in law.  Applicants cannot introduce new evidence, and are limited to the evidence that was before the Refugee Protection Division Member that heard your case.

In this post, I outline some possible grounds that you may use to successfully obtain a judicial review.  While I strongly recommend that you hire a lawyer to conduct your judicial review, I hope that this post will provide you with some initial ideas to discuss with your counsel.

Did the RPD misapply credibility during the section 97 analysis?

Under section 96 of IRPA, a claimant must establish the existence of a well-founded fear of persecution tied to a 1951 Convention ground.  However, under section 97 of IRPA, a claimant must show on a balance of probabilities that removal from Canada would subject them personally to specified dangers and risks.

The evidence necessary to establish a refugee claim under section 96 of the Act is different from that required to establish a claim under section 97 of the Act.  Section 97 requires that the Board consider the generally known country conditions of the claimant’s country of origin.  The Board is required to analyze how these conditions might establish a section 97 claim.  It is a wholly objective analysis, and must be evaluated in light of all relevant considerations and with a view to the country’s human rights record.

A negative credibility determination in respect of a refugee claim under section 96 is not necessarily dispositive of the consideration under section 97.

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Introducing New Evidence at a Judicial Review

6th Jan 2011 Comments Off on Introducing New Evidence at a Judicial Review

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.

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Federal Court Rules on Galloway Inadmissibility

28th Sep 2010 Comments Off on Federal Court Rules on Galloway Inadmissibility

The Federal Court has released its decision on the legality of the “decision” to prohibit former British MP George Galloway from entering Canada for having committed terrorism or been a member of a terrorist organization.

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