Distinction between an appeal and judicial review
In an appeal or an application for judicial review, the appellant or the applicant, as the case may be, seeks to challenge a decision adverse to their interests.
For appeals, IRPA gives appellants the right to seek a remedy provided for in the Act from a specific level of appeal, such as the Immigration Appeal Division of the Immigration and Refugee Board.
A decision that has been appealed can be disposed of by:
• dismissing the appeal;
• staying the effect of the decision that was appealed; or
• allowing the appeal; and either
• substituting the appellate tribunal’s decision for the decision that was made; or
• sending the issue back to the decision maker for reconsideration.
Usually the determination of the appeal is based on the question of an error in law or fact or both; or on the belief that a principle of natural justice has not been followed; or, sometimes, on the existence of sufficient humanitarian or compassionate considerations to warrant special relief. For more information on appeals, see OP 21.
In contrast, a judicial review of a decision is not an appeal on the merits of the case. The Court cannot substitute its decision for that of the decision maker. Rather, the Court is examining the process that led to the decision and determining if this process was fair and reasonable. If the Court determines that it was not, the Court may only quash the decision in question and order a redetermination. Judges cannot order which decision is to be made, although they may issue directions as to how the redetermination is to be carried out.
Pursuant to section 18 of the Federal Courts Act, if the relief sought is based on a defect in the form of the decision or on a technical irregularity, the Federal Court can refuse relief if no substantial wrong or miscarriage of justice took place, or it can take steps to correct the irregularity. (See excerpts of sections 18 and 18.1 in Appendix B.)
In the case of applications for judicial review, the powers of the Federal Court are defined in section 18.1(3) of the Federal Courts Act.
Grounds for judicial review
A judicial review application is different from an appeal.
On an appeal, the judge decides the issues based on what the judge determines to be the correct answer when the law is applied to the facts of the case.
Appeals are therefore concerned with getting the right decision.
Judicial review is concerned with the manner in which a decision is made.
For example, a judge may disagree with an officer’s decision, but if the judge is satisfied that the officer proceeded fairly, understood the facts of the case, and acted within the authority of the IRPA, the judge may dismiss the application for judicial review.
In simplified terms, the main reasons for allowing an application for judicial review are:
(a) the decision-maker made an error in law, whether that error is obvious or not;
(b) the decision-maker got the facts wrong at a fundamental level, or appears to have ignored a fact of fundamental importance;
(c) the decision-maker violated a principle of natural justice or failed to observe procedural fairness;
(d) the decision-maker’s decision goes beyond the authority conferred upon the decision-maker by the IRPA and the Regulations [section 18.1(4), Federal Courts Act].
The precise grounds upon which judicial review may be granted are set out in Appendix B.
The grounds for judicial review are those set out in the Federal Court Act and are the same as the grounds for review of decisions of the Refugee Protection Division; i.e., that the body or person:
Applicants who succeed in their leave applications are entitled to a hearing before the Trial Division of the Federal Court. Appeals from the Trial Division decision to the Federal Court of Appeal are permitted only if the Trial Court Judge certifies at the time of judgment that a serious question of general importance is involved and the Judge sets out the question.
An application for leave and judicial review is a legal form defined in the Federal Court Immigration Rule, 1993 (Rule 5).
Section A72(1) of the IRPA provides that anyone seeking the judicial review of a decision, determination, order made, a measure taken or a question raised must first seek leave of the Court.
Leave, in this context, means permission to have the matter resolved by the Court at an oral hearing.
This provision now includes visa decisions, which were previously exempted from the leave requirement.
As a result, judicial review of decisions made under IRPA is a two-stage process.
The first stage is the leave application that is decided via a paper-review process. If leave for judicial review is denied, the application is dismissed and proceeds no further because there is no right to appeal from this decision [A72(2)(e)].
If leave is granted, the proceedings move on to the second stage, the application for judicial review. The two stages together are known as an application for leave and judicial review.
A72 through A75 provide for judicial review by the Federal Court of any matter under IRPA. The review is commenced by making an application for leave to the Court. Further, leave cannot be sought until the applicant has exhausted all avenues of appeal to which they might be entitled.
The requirement for leave does not in itself deprive applicants of an independent review of their cases; the Federal Court manages this screening mechanism itself to ensure that meritorious cases continue to be granted leave for a full judicial review.
Time limit for filing application for leave
For the purposes of calculating the time limit within which the application for leave and judicial review must be commenced, the IRPA sets up three scenarios.
First is an application to review an officer’s decision in a matter arising in Canada. The application for leave and judicial review must be commenced within 15 days after the date on which the person concerned is notified of or otherwise becomes aware of the matter [A72(2)(b)].
Second is the review of an officer’s decision in a matter arising outside Canada. The application must be commenced within 60 days after the date on which the person concerned is notified of or otherwise becomes aware of the matter [A72(2)(b)].
Third is an application for leave and judicial review by the Minister of C&I or the Minister of PSEP
with respect to a decision of the IRB (the Ministers may not seek judicial review of an officer’s
decision). In this scenario, leave and judicial review must be commenced within 15 days from the
giving of notice of the decision or, where written reasons have been requested, from the sending
of the written reasons, whichever is the later [A169(f)].
In certain circumstances, the Court may extend these deadlines.
Judicial review matters must be dealt with originally in the Federal Court.
All applications for judicial review of immigration and refugee matters require leave of a judge of the Federal Court [section 72 of the Immigration and Refugee Protection Act].
The application for leave to seek judicial review must be filed and a certified copy served on the respondent by the applicant within 15 days of notification of the decision or order for a matter arising in Canada, or within 60 days for a matter arising outside Canada [paragraph 72(2)(b) and Rules 4(2) and 7(1)]. Proof of service on the other parties must be filed within 10 days of service [Rule 7(2)]. For proof of service in the Federal Court and Federal Court of Appeal in general, refer to Federal Courts Rule 146.
Form of Application
An applicant should follow Form IR-1 in the Schedule to the Rules, entitled Application for Leave and for Judicial Review, of this booklet.
Should an extension of time be needed, the applicant must request it in the application for leave [paragraph 72(2)(c) and Rule 6(1)].
Rule 23 states that the fee to file an application for leave is $50.
What happens at the leave stage
The leave stage of an application for leave and judicial review proceeds entirely in writing.
Once the application is commenced, the applicant has 30 days in which to file the Application Record.
This period is extended in cases where the applicant indicates that they have not received the written reasons of the officer or the IRB. In those cases, the Application Record must be filed within 30 days after receiving the response to the Rule 9 letter (Rule 10, Federal Court Immigration Rules, 1993).
The Application Record includes the applicant’s affidavits and written memorandum of argument.
An affidavit is a sworn document and is therefore a written form of testimony. In the affidavit, the applicant provides the evidence needed to support the request to have the officer or the IRB’s decision set aside. In the memorandum of argument, the applicant sets out the legal argument in support of the application.
The respondent to the application files its responding material within 30 days after receiving the Application Record.
Filing an affidavit is optional for the respondent, but the respondent must file a memorandum of argument (Rule 11, Federal Court Immigration Rules, 1993).
Possible outcomes of an application for leave
The judge is required to dispose of the leave application without delay and in a summary way [A72(2)(d)]. The Court usually disposes of leave applications without personal appearances. If the leave application is denied by the Court, then the matter is at an end. If, however, the leave application is granted, then the judge will set the conditions for the full hearing of the judicial review application.
If the judge is satisfied that the applicant has raised a serious or arguable issue, leave for judicial review of the decision will be granted.
If leave is granted, the hearing must be held not earlier than within 30 days and not later than 90 days of the date granting leave [A74(b)].
The judge then will make an order that sets out deadlines for subsequent steps in the application for judicial review including the date that the hearing is to take place.
Application for reconsideration
While leave decisions cannot be appealed, applicants may file motions to the Federal Court to seek reconsideration of the leave decision. It is rare that the Court will grant a reconsideration request.
Scheduling of judicial review hearing
The judge who grants leave has to fix a date and place for the full hearing no sooner than 30 days and no later than 90 days after granting leave, unless the parties agree to an early hearing.
Appeals of decisions of the Federal Court
The Federal Court judge’s decision on the application for leave is final and cannot be appealed. A decision of a judge on a full judicial review application can be appealed to the Federal Court of Appeal, but only if the judge certifies that a serious question of general importance is involved [A74(d)]. The party requesting that a serious question of general importance be certified has to specify the precise question. Under subsection 18(2) of the Federal Court Immigration and Refugee Protection Rules, the wording of the certified question is ultimately determined by the judge who certifies it.
Appeal to the Federal Court of Appeal
Access to the Federal Court of Appeal is limited by the IRPA.
A party may only appeal a decision of a Federal Court on an application for judicial review in an immigration or refugee protection case if the Federal Court judge certifies that there is a serious question of general importance for consideration by the Federal Court of Appeal [A74(d)].
In general terms, a serious question of general importance will arise where the Court, in determining the application, has considered a new issue which is likely to arise in future cases.
It takes about two years to resolve an appeal.
If the appeal is successful, the Federal Court of Appeal will make the order that the Federal Court ought to have made.
Therefore, the Court will, in most cases, either make an order dismissing the application for judicial review or make an order remitting the subject matter to a different officer or panel of the IRB for redetermination.
Where the Court of Appeal is satisfied that the Federal Court made the right decision, the Court of
Appeal will usually make an order dismissing the appeal.
In either case, the Court of Appeal will also answer the serious question of general importance certified by the Federal Court and which gave rise to the appeal in the first place.
Appeals of decisions of the Federal Court of Appeal
Under subsection 40(1) of the Supreme Court Act, decisions of the Federal Court of Appeal can be appealed to the Supreme Court of Canada only with leave of that Court.
Appeal to the Supreme Court of Canada
The party who is not satisfied with the decision of the Federal Court of Appeal has the right to seek leave to appeal the decision (of the FCA) to the Supreme Court of Canada [Supreme Court Act subsection 40(1)].
The appellant has 60 days to file the leave application that is decided via a paper- review process.
The Supreme Court of Canada may grant leave to appeal if the issues raised are of significant national importance and have not previously been addressed.
Most leave applications to the SCC are denied.
If leave to appeal is granted, the matter will proceed to a full hearing by the SCC.
It usually takes the Court about two years to hear an appeal unless it is expedited.