Last updated on June 27th, 2021
Last Updated on June 27, 2021 by Steven Meurrens
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), 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.
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.
Exercises of Futility
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.
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.