Understanding Judicial Review

Meurrens LawImmigration Trends

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 first.

New Evidence

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.

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, one 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 (Treasury Board)168 FTR 273 — [1999] FCJ No 835 (QL),

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. . . .

This does not mean that one should simply never 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), 2010 FC 1317, 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.

Exercises of Futility

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.

Just One Error

Several Federal Court of Canada decisions (like Ocran v Canada (Citizenship and Immigration), 2022 FC 175 and Rezaali v. Canada (Citizenship and Immigration), 2023 FC 269, have ruled that one one error may not be sufficient to render an entire decision unreasonable where an officer has other reasons which are valid.

Extension of Timelines

It is important to note that the filing of a judicial review does not extend statutory immigration deadlines. For example, in Lawrence v. Canada (Citizenship and Immigration), 2021 FC 607, Justice Lafrenière stated that the filing of a judicial review application of a post-graduate work permit refusal does not extend the ninety deadline to file a restoration application.

New Arguments

It is generally not advisable at judicial review to raise arguments which were not before the officer. In Kaur v. Canada (Citizenship and Immigration), 2024 FC 258, for example, Madam Justice Go stated that officers are not required to consider an exception where the applicant fails to raise or explain how the exception applies.

Attacking Past Decisions

As the Federal Court reitereated in Cheema v. Canada (Citizenship and Immigration), 2024 FC 952, a judicial review is typically limited to reviewing the matter that is the subject of the judicial review. While the Federal Court may consider past decisions where it is relevant in the context of a decision, it will not adjudicate the propriety of past, final decisions.

Role of Litigation Management

The following ATIP shows the role of IRCC’s Litigation Management branch.

There are some key takeaways, including that it is not always the base that the Department of Justice contacts litigation management to discuss settlement. If counsel believes that IRCC should settle it may be worth contacting the DOJ to inform them of why settlement may be warranted.

Lit Management