Federal Court Review of Immigration Refusals – Part II
The process step by step, from filing to resolution
In Part I of this series, we covered the general principles of judicial review of immigration decisions by the Federal Court. In Part II, we walk through what the process looks like in practice – from the initial filing to the final resolution.
Application for Leave to Begin Judicial Review
The process formally begins with the filing of an Application for Leave and for Judicial Review with the Federal Court (Form IR-1). This standard-form document serves two purposes: it requests the Court's permission to proceed with a judicial review, and it notifies the opposing party – the respondent, in this case IRCC – that proceedings have been initiated in relation to one of its immigration decisions.
Strict time limits apply to this filing: 15 days if the contested decision was made in Canada, and 60 days if the decision was made by a visa office abroad. The deadline runs from the date the applicant learned of the decision they intend to challenge.
If all procedural requirements are met, the case is assigned a file number and accepted by the Federal Court.
A certified copy of the application must be formally served on the respondent – IRCC – within the same deadline. In turn, a copy bearing proof of service must be filed with the Federal Court within 10 days. This ensures that all three parties to the proceedings – the applicant, the Federal Court, and IRCC – are notified that the process has begun.
Written Reasons for the Refusal
The next step falls to the respondent. IRCC is required to provide the applicant with written reasons for the refusal. In most cases, these take the form of a GCMS extract containing the immigration officer's notes – a record of how and why the officer arrived at the negative decision.
Once the applicant receives the written reasons, they have all the material needed to build a substantive challenge to the refusal before the Federal Court. The clock starts at this point: the applicant has 30 days from receiving the written reasons to file the full application record.
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The Application Record
The substance of the case presented to the Federal Court is set out in the application record. This is a comprehensive package that typically includes the following documents:
- The previously filed and accepted Application for Leave and for Judicial Review
- The refusal letter notifying the applicant of the negative decision
- The written reasons for the refusal received from IRCC
- Affidavits from the applicant and third parties setting out the key facts of the case with supporting documentation
- A memorandum of argument – the detailed legal brief explaining why the decision should be set aside
The application record is formally served on the respondent – IRCC – after which a copy bearing proof of service is filed with the Federal Court.
The Response
The next stage is IRCC's response to the application record. From this point, events can follow one of two paths:
The Respondent Maintains the Decision
IRCC files a document detailing its position in support of the original negative decision. The applicant may then file a reply in the prescribed form, and ultimately the case will be decided by the Federal Court.
It is important to note that under this scenario the Federal Court retains the right to refuse to hear the case if it does not identify serious errors or violations of legal norms. The presence of such errors is a mandatory condition for the application to proceed.
The Respondent Withdraws the Decision
If, at this stage, IRCC acknowledges that errors were indeed made in reaching the decision and that the outcome might have been different without them, the applicant receives a letter proposing that the case be resolved before it reaches a hearing. The standard terms of such a pre-trial settlement are typically as follows:
- The applicant withdraws the application for judicial review from the Federal Court
- IRCC sets aside the original negative decision and accepts the immigration application for reconsideration by a different officer
- No costs are awarded to either party
This is the preferred outcome, and the most likely one where the original refusal was genuinely made in error and that fact has been clearly set out in the application record.
After receiving a settlement offer, the applicant can negotiate with IRCC's representative to adjust the terms. Depending on the circumstances, the applicant may request additional conditions such as:
- The application must be reconsidered under the requirements that were in effect at the time of the original submission (if requirements have since changed)
- The application must be accepted for processing regardless of current quotas (if the quota was exhausted during the court proceedings)
- The applicant is permitted to supplement the application with new documents
Notice of Discontinuance
Once the applicant and IRCC agree on the terms of the pre-trial settlement, the applicant files a Notice of Discontinuance (Form 166) with the Federal Court and serves an official copy on the respondent.
From that point, the agreement between the parties takes effect and the immigration application is sent to a different officer for reconsideration.
It is important to emphasise that a reconsideration of the negative decision does not guarantee that the immigration application will be approved. The purpose of the entire process is to identify the errors made by IRCC and return the application for proper processing. If grounds for refusal are found again, a second negative decision may be issued.
This article provides a simplified overview of a typical judicial review process. In practice, individual cases may follow different paths depending on their specific circumstances. Lawpoint Immigration has extensive experience with Federal Court proceedings and can guide you through every stage of the process.