The Federal Court of Canada (the “Federal Court”) has the jurisdiction to review immigration decisions, including those of Immigration, Refugees and Citizenship Canada (“IRCC”) and the Canada Border Services Agency (“CBSA”).  The Federal Court will not order a specific result.  Rather, the Federal Court will order that the application be sent back for re-determination by a different officer.

Many people often wonder how that process works.

I recently obtained through a Proactive Disclosure a copy an Access to Information Act request that somebody else submitted which provides insight to these questions.  The request stated:

Please send me all information that you have on how your institution responds to orders from the Federal Court or the Federal Court of Appeals to re-evaluate refused Temporary Resident Visa (TRV) applications, including, but not limited to: – any penalties or other actions that your institution imposes on visa officers refuse TRV applications that the Federal Court ordered to be re-evaluated, including, but not limited to penalties, reductions in salaries, reductions in employment rank, retraining, termination of employment, notes in performance evaluations, verbal warnings, written warnings, etc. – any changes to training materials, procedures, etc. Please also send me information on whether your institution keeps track, at a visa officer level, of the number of visa applications that each visa officer evaluates, the number that the visa officer refuses, and the number of refused applications that the Federal Court has ordered to be re-evaluated. If your institution keeps track of this information for each visa officer, then please send me this information, along with information you have about each visa officer, including but not limited to: dates and places of employment as a visa officer, gender, date of birth, nationality, citizenship, performance evaluations, etc.

What Happens After a JR

While individual IRCC office procedures vary, IRCC is generally consistent that when a decision is set aside and a  re-determination is occurring as a result of an allowed or consented to judicial review, then an entirely new assessment is to be completed by a new officer, with processing done on a priority basis and that the applicant should be provided with the opportunity to provide updated submissions.

IRCC’s Case Management Branch and Litigation branch are often involved, although they too do not provide instruction as to what the ultimate decision will be.

The following are example e-mails between litigation management and visa posts post judicial review.

 

It is important that applicants and their counsel communicate with the visa post directly once a decision is set aside.  As the e-mail below shows, sometimes the results of the Federal Court are (accidentally) not communicated to visa posts.

As an aside, I am often asked what a Rule 9 request looks like. It looks like this.

Rule 9 Request

Specific Requests and Answers

Here are the specific answers provided by two visa offices to the ATI query above.

“Please send me all information that you have on how your institution responds to orders from the Federal Court or the Federal Court of Appeals to re-evaluate refused Temporary Resident Visa (TRV) applications, including, but not limited to:

We respond to orders from the Federal Court by responding to the instructions provided by Case Management. They provide specific instructions as to next actions and the notes recorded in GCMS. This is a worldwide procedure and not Accra driven. We do not keep separate files on these actions as all information is stored within GCMS. – Accra

Case is reopened and assigned to a different officer. – Hong Kong

any penalties or other actions that your institution imposes on visa officers refuse TRV applications that the Federal Court ordered to be re-evaluated, including, but not limited to penalties, reductions in salaries, reductions in employment rank, retraining, termination of employment, notes in performance evaluations, verbal warnings, written warnings, etc.

We have not imposed penalties or warnings on officers for refusing applications returned from the Federal Court for re-determination. – Accra

None of the HR measures listed in the request have been carried out in connection with judicial reviews. When notified of a judicial review applications, managers normally look at the case to evaluate the decision-making process, and may discuss it with an officer as appropriate. – Hong Kong

– any changes to training materials, procedures, etc.

None. – Accra

Nil. – Hong Kong

Please also send me information on whether your institution keeps track, at a visa officer level, of the number of visa applications that each visa officer evaluates, the number that the visa officer refuses, and the number of refused applications that the Federal Court has ordered to be re-evaluated.

Clearly this information could be pulled from GCMS but I cannot do it as I do not know the names of all officers who worked in Accra since 2010. – Accra

Hong Kong keeps routine statistical charts which include the number of decisions made per officer. These do not include the approval rates and refusal rates. Hong Kong keeps a tracking document of judicial review cases but it does not calculate any statistics such as the total number of cases or cases per officer; it is simply a list. – Hong Kong

If your institution keeps track of this information for each visa officer, then please send me this information, along with information you have about each visa officer, including but not limited to: dates and places of employment as a visa officer, gender, date of birth, nationality, citizenship, performance evaluations, etc.”

Clearly this information could be pulled from People Soft but I cannot do it as I do not know the names of all officers who worked in Accra since 2010. – Accra

There are no statistics on opened judicial review cases per officer. – Hong Kong

What Happens Post Judicial Review – Abu Dhabi

At the Canadian Embassy in Abu Dhabi, the internal procedures and redetermination at that office are as follows:

Internal Procedures:

Litigation Coordinator will:

  • Re-open the file for App Status reason of “Judicial Review”. Findec will be blanked out, but the Eligibility will remain as “Failed” (to avoid these files being picked up in various queries for unrelated tasks).
  • Assign the application to the next person on the roster who is not the original decision maker. If this individual is unavailable, file will be re-assigned to the next available person on the roster.
  • Update the litigation log on the Id rive.
  • Forward the Notice of Discontinuance (NoD) email to the assigned officer- this will include the background section, indicating the issues related to the previous decision/process. Please keep this email for your records until completion of the file. This email may also indicate a time frame within which the redetermination should be made- please make note of this.
  • For VAC files only: email Registry to pull the file for officer’s review, indicating the new officer assigned to this file.
  • For VAC files only: file will be brought to the assigned officer.

Officer to:

  • Review the application within 15 days of assignment from Litigation Coordinator (as an internal service standard). If redetermination is based on Eligibility, the two week time frame excludes any VIT or meds that may be required. Any redeterminations on Security or Meds typically do not have a specified time frame, but they should be processed on a priority basis and finalized as soon as possible.
  • If the Officer is satisfied based on the information already on the file, please proceed with approval without requesting additional documents.
  • If additional documents are required OR the decision is leaning towards a refusal, please send a PFL.

NOTE: When an application is undergoing the redetermination process, extra care and due diligence should be taken to ensure that:

  • communications with applicant and actions taken on a file are well-documented in GCMS notes;
  • procedural fairness is given whenever appropriate and recorded in GCMS; and,
  • refusal notes are clear, reasonable, accurate and complete. Template refusals are not to be used on files undergoing judicial review.
  • please do not hesitate to consult with your supervisor or Litigation Coordinator if you have any questions on how to proceed with a case
Abu - PostJR

I hope this post has been informative and shed some light on the post judicial-review process.