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.
Jurisprudence
In Canada (Commissioner of Competition) v. Superior Propane Inc. (C.A.), 2003 FCA 53, the Federal Court of Appeal stated:
The principle of stare decisis is, of course, well known to lawyers and judges. Lower courts must follow the law as interpreted by a higher co-ordinate court. They cannot refuse to follow it: Canada Temperance Act (The), Re, 1939 CanLII 58 (ON CA), [1939] O.R. 570 (C.A.), at page 581, affd 1946 CanLII 351 (UK JCPC), [1946] 2 D.L.R. 1 (P.C.); Woods v. The King, 1951 CanLII 36 (SCC), [1951] S.C.R. 504, at page 515. This principle applies equally to tribunals having to follow the directions of a higher court as in this case. On redetermination, the duty of a tribunal is to follow the directions of the reviewing court.
In Canada (Citizenship and Immigration) v Yansane, 2017 FCA 48, the Federal Court of Appeal further held that:
Strictly speaking, the first judge’s judgment did not, in my opinion, contain any directions or instructions. By referring the case to another immigration officer for reconsideration “in accordance with these reasons,” the first judge was not giving instructions within the meaning of paragraph 18.1(3)(b), but merely reiterating the well-known principle that an administrative decision-maker must comply with the decision of a superior court in applying the principle of stare decisis. In fact, it matters little whether the judgment allowing an application for judicial review contains such a statement; it goes without saying that an administrative tribunal to which a case is referred back must always take into account the decision and findings of the reviewing court, unless new facts call for a different analysis. In the Burton case the Court determined that there was a risk, and the immigration officer had to take this finding into account; this scenario is quite different from the situation in the current case, where Shore J. did not determine the risk to which the respondent was exposed if he returned to Guinea but specified the type of evidence the PRRA officer needed to obtain to exclude the new evidence submitted by the respondent in his second PRRA application. Such an instruction, which departs from the very nature of a judicial review proceeding and infringes upon the expertise of the officers in charge of assessing PRRA applications, cannot bind the administrative decision-maker unless it is explicitly part of the formal judgment. Such was not the case here.
In Garcia Balarezo v. Canada (Citizenship and Immigration), 2020 FC 841, the Federal Court stated:
Where a matter is remitted for redetermination, a tribunal is required to follow the directions of the reviewing court: Canada (Commissioner of Competition) v Superior Propane Inc, 2003 FCA 53 at paras 1, 54. This includes matters set out in the reasons for judgment, although the decision maker is only bound by outcomes, factual determinations or evidentiary assessments that are expressly set out as directions in the judgment: Superior Propane at paras 10, 17–18; Canada (Citizenship and Immigration) v Yansane, 2017 FCA 48 at paras 16–19, 24–25. This requirement is implicit in any remittance, even if the Court’s order does not expressly state, as Justice Boswell did, that the matter is to be redetermined “in accordance with the reasons”: Yansane at para 25; Garcia Balarezo at para 24.
In both Mohammed v. Canada (Citizenship and Immigration), 2023 FC 1044 and Barril v. Canada (Citizenship and Immigration), 2023 FC 1152 redeterminations were set aside because tribunals did not adhere to the decisions of the Federal Court.
What Happens After a Judicial Review – Manuals
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.
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.
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
I hope this post has been informative and shed some light on the post judicial-review process.
2022 Change in Process
In 2022, IRCC’s Litigation Management Branch announced that it would no longer be monitoring most cases sent back for redetermination, and would leave that responsibility to the processing offices.
Here are the Standard Operating Procedures for the new process.
Discon SOPs