Federal Court of Canada - Judicial Review Part II

The previous part of this article focused primarily on the overall principles of the judicial appeal process. This part will provide a rather more in-depth digest of how the appeal process plays out: from filing your application with the Federal Court to working with a possible denial from the IRCC.

Application for Leave and Judicial Review

The procedure begins with filling out Form IR-1 (Application for Leave and for Judicial Review) with the Federal Court. Filing this short standardized form with court authorities serves a dual purpose:

  • Signifies the claimant's wish to have their case reopened.
  • Notifies the IRCC – the defendant – about the fact that an investigation is initiated into one of their negative decisions.

The claimant has to file Form IR-1 within fifteen days of receiving the IRCC’s decision if the initial immigration case was handled by a domestic immigration office, or within sixty days if the case was handled by the Canadian immigration authorities abroad. In both cases, this period starts from that day when the claimant was made aware of the IRCC’s decision.

If the claimant complies with all official procedures, their case will be assigned a number and put in queue for Federal Court review. Form IR-1 fee at the time of writing this article is $50 CAD.

After this, a notarized copy of the form will be forwarded to the defendant. Within 10 days of receiving the form, the IRCC will send a signed copy of that notarized document back to the court authorities, signifying that they are informed of the now-initiated investigation.

All of this guarantees that all three parties to the case – the claimant, the defendant, and the Federal Court – are made aware of the start of court proceedings.

Written Justification for the IRCC’s Decision

After getting their copy of Form IR-1, the IRCC is obligated to provide the claimant with the “written reasons” for their original negative decision regarding the claimant’s case. These usually come in the form of a GCMS report with an additional statement by the immigration official that handled the claimant's application.

This is all the claimant needs to file their appeal with the Federal Court. After getting the information from the authorities, the claimant will have thirty days to collect their “ Claimant’s Record” and turn it in to the court authorities for analysis.

Claimant’s Record

The claimant’s record is a multi-page report that compiles the following paperwork:

  • Table of contents with title of each provided document.
  • The applicant’s copy of Form IR-1.
  • The refusal letter that the claimant had originally received from the IRCC.
  • The IRCC’s written justification for their decision (i.e., the GCMS report and the immigration officer’s statement).
  • Any and all affidavits and supporting documents.

This package of documents is then forwarded to the defendant. The defendant must then sign the claimant’s record and forward a copy to the Federal Court.

Defendant's Response

After this is done, the IRCC has to supply the claimant with an official statement regarding the case. From this moment on, the case can go either of two ways:

  • the defendant will continue to stand by their original decision; or
  • the defendant will withdraw their original decision and review the claimant’s case.

IRCC Continues to Support Their Original Decision

If this is the case, the IRCC will send the claimant a document detailing their position regarding the original negative decision. The documents provided by both sides to the case will then be examined by the Federal Court.

The court has the right to refuse to accept a case for consideration if the claimant fails to show proof of serious errors on the IRCC’s part that have negatively affected the outcome of their application.

The IRCC Withdraws Their Original Decision

If at this stage the IRCC may admit that there were errors in their judgment on the original decision and that these errors had in fact negatively affected the claimant's case, they will send the claimant a letter with a proposal to withdraw the case from the Federal Court on certain conditions.

These include the following:

  1. The claimant withdraws their application for judicial review.
  2. The IRCC repeals its negative immigration decision and forwards the claimant’s case to a different immigration officer for review.
  3. Monetary compensation is not awarded to either party.

This scenario is more preferable than the first and by far the most likely, especially if the supporting documents and proof you provide manage to sufficiently highlight the error in the IRCC’s judgment.

After receiving the IRCC’s proposal for an out-of-court settlement, the claimant has the opportunity to communicate with a IRCC representative in order to discuss any additional conditions. Depending on the claimant’s case, these can include the following:

  • The case has to be reviewed according to the rules and guidelines in effect at the time of its original submission (if these rules and guidelines have since changed);
  • The case has to be handled regardless of the now-existing quotas (if these quotas had been exhausted over the course of the litigation period);
  • The claimant may supplement their immigration case with new supporting documents.

Notice of Discontinuance (Form 166)

If and when the claimant and the defendant come to an agreement regarding the terms of the out-of-court settlement, the claimant must file Form 166, Notice of Discontinuance with court officials. A notarized copy of Form 166 must be forwarded to the defendant.

From that moment on, the conditions agreed on by the claimant and the defendant come into full effect and the claimant’s case is taken in for a reevaluation.

It must be emphasized that getting the IRCC to reevaluate the claimant’s case does not guarantee that it will be approved the second time around.

The purpose of the previously-discussed appeal is to point out any mistakes for the IRCC and to return the same application for a second round of processing. If the IRCC finds new grounds on which to refuse the same application, a negative decision can easily be carried out once more.

This article provides a simplified streamlined description of a Federal Court judicial review process. In reality, a myriad of other scenarios may take place depending on each and every particular case.

416.273.6646 5409 YONGE ST., OFFICE 205, TORONTO