Was your Canadian immigration visa application declined? Are you looking for a chance to get your immigration case reviewed? Canadian Immigration law authorizes you to request the Federal Court of Canada to review immigration decisions.
The Federal court gives you a chance to overturn any decision based on an error made by any federal board, commission or tribunal.
How to Proceed to the Federal Court?
Requesting the Federal Court for a review is a 2 stage process:
Leave stage: In this stage, you are required to present documents about your case to the court.
You must be able to demonstrate why the decision was unfair or unreasonable or that an error was made.
The Federal Court providing leave means that it has agreed to review your case in detail.
Judicial Review Stage: In this stage, you are required to attend an oral hearing before the court and attest to the reasons for requesting the review.
This application can be filed by anyone directly affected by the decision or an order made by a federal board, commission or tribunal.
If the leave is given by the court, you can progress to the second stage of the judicial review known as “Application for Judicial Review.”
For some cases, requesting a review from the Federal Court automatically grants you a stay of removal, which means that your removal order is put on hold until the court reviews your application and comes to a final decision.
What is the Basis for Judicial Review in the Federal Court?
If you perceive that an error of law was made regarding your immigration case, then you have the basis to ask for a judicial review.
An error of law can be the following:
- Prejudice of the decision-maker (this issue must be raised before the decision at the earliest opportunity)
- Acting without or beyond jurisdiction
- Violation of procedural fairness
- Using the wrong legal test
- Restricting discretion
- Taking actions contrary to the law
- Misunderstanding or ignoring a statute or case law
- If the decision-maker misapplies a legal test to a set of facts, it is considered an error of mixed fact or law
- If the decision maker makes an incorrect determination of fact based on evidence, it is considered an error of fact
If the court allows a judicial review, then the original decision on your case is set aside and it is sent back to the decision-maker to be reviewed.
What Else do You Need to Know About the Federal Court Proceedings?
Stay of Removal: As a noncitizen (a foreign national or a foreign national with permanent residence), you can be issued 3 types of removal orders which carry very specific consequences:
- Deportation Order: If you are issued a deportation order, then you will be removed from Canada immediately. You will be arrested by the Canadian Border Service Agency (CBSA) and will be restricted from entering Canada ever again.
- Exclusion Order: If you are issued an exclusion order, then you are restricted from entering Canada for a period of time, which is usually 1 to 2 years.
- Departure Order: If you are issued a departure order, then you are provided with 30 days to leave Canada voluntarily. If you fail to do so, then the departure order is converted into a deportation order.
Mandamus: If your application has been pending for too long with the government department of Immigration, Refugees and Citizenship Canada (IRCC), you can seek a judicial remedy to move your case forward.
A writ (written command in the name of a court to act, or abstain from action) of Mandamus is an official order issued by a court to any government agency or public authority to do something which that body is legally obliged to do anyway.
If you are pleading for a writ of Mandamus, then you must demonstrate that you have a legal right to compel the authority to do something specific. The writ must meet two requirements:
- It must be a public act
- It must be an important and not an optional act
You must be able to prove that you have previously made a demand for the completion of that act within a duration of time. That way you can rightfully claim that the authority concerned had failed to do their duty and therefore, an application for Mandamus is a last resort.
You Can Appeal a Decision Made by the Following Immigration and Refugee Board (IRB) Divisions in the Federal Court:
Immigration Division: This division is 1 of 4 divisions of the Immigration and Refugee Board (IRB) that conducts admissibility hearings and detention reviews under the Immigration and Refugee Protection Act (IRPA).
Immigration Appeal Division (IAD): The IAD division is 1 of 4 divisions of the Immigration and Refugee Board (IRB) that apprehends and decides on different immigration appeals.
What is the Time Period to Apply to the Federal Court?
There are different deadlines for different statutes. Generally, you are required to file an application for judicial review within 15 days if the case matter occurs in Canada or within 60 days if the case matter occurs outside Canada.
However, some cases may have very specific deadlines. For example, in the case that your refugee protection claim has been rejected, you are required to file a 'notice of application’ within 15 days of the IRB’s decision.
After this initial application has been submitted, you have 30 days to file the Application Record, which includes your legal documents and evidence to support your case.
At this stage, it is generally recommended to hire an immigration litigation lawyer as soon as possible.
Once a notice of application has been submitted, you have 30 days to file an affidavit that contains the evidence and gives basis for your plea of review.
What About Your Status of Removal?
Whether or not you will be allowed to stay in Canada while your application is under review is decided by the IRB division that made the initial decision.
These are the last 2 divisions of the IRB:
Refugee Appeal Division: If the decision you are looking to review was made by this division, then your removal order will be put on hold. You will be allowed to stay in Canada until the federal court makes the decision.
Refugee Protection Division: If the decision you are looking to review was made by this division, then your removal order will not be put on hold. You will be required to leave Canada until the Federal Court makes its decision.
Ultimately, if the court decides that no error was made, then you must leave Canada within 30 days.
However, if the court returns your case back to the IRB for further review, your case will be reconsidered. However, that does not guarantee that the IRB will change the original decision.
