JUDICIAL REVIEWS TO THE FEDERAL COURT

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1 JUDICIAL REVIEWS TO THE FEDERAL COURT WHAT IS JUDICIAL REVIEW Application to the Federal Court asking it to review a decision made by an administrative body, which the applicant believes was wrongly made NOT an appeal No new evidence can be presented can only present evidence that was before the administrative decision-maker The Court will ask: based on the evidence that was before the decision-maker, was the decision made reasonable and/or correct? WHAT CAN THE FEDERAL COURT TO DO? (some common remedies) 1. Stop the Minister from doing something - Injunctions o order (permanent or temporary) from the Court preventing the Minister from removing a person from Canada or to prevent a hearing/inquiry o example: Judicial Stay preventing someone s deportation from Canada Overturn a decision - Certiorari o to void the decision of an immigration or visa officer, or tribunal, and return the matter for reconsideration by another officer or tribunal member o Example: visa officer made errors in his/her decision on the application Compel the Minister to do something Mandamus o Example: inordinate delays in getting a decision compel the Minister to act REPRESENTATION BEFORE THE FEDERAL COURT Self-represented applicants (rarely successful) Represented by a lawyer with a valid licence to practice law in Canada 1

2 TIME LIMITS Decisions made inside Canada 15 DAYS Decisions made Outside Canada 60 DAYS Begins to run from date the applicant is notified of the decision Start counting the day after the decision is received o Example: decision received by applicant on June 1, Deadline to start Judicial Review is June 16 th, 2011 (for in-canada decision) or July 31, 2011 REQUESTS FOR TIME EXTENSIONS Requests for time extensions can be made o Request included in the Application for Leave o Include material for why the request is being made ie. Why is it late? TEST: having regard to all the circumstances, there must be a satisfactory reason for the delay 1) there must be some justification for not bringing the application within the required time period 2) there must be an arguable case for the subject matter of the application 3) the applicant can demonstrate a genuine (bona fide) intention to comply with time periods Practical issues with time limits: o Beware of months with 31 days o Be aware that the applicant must file and serve their Application for Leave (the starting document) by the deadlines service is on Department of Justice in Edmonton. Will take 1 day if served by overnight courier. So, actual deadline is 1 days less than stated. 2

3 WHAT TYPES OF DECISIONS CAN YOU ASK THE FEDERAL COURT TO REVIEW? Decisions by immigration officers and immigration tribunals Must be a decision of a Federal body No Judicial Review if there is another appeal process o Example: a refusal of an overseas family class sponsorship cannot be judicially reviewed. It must be appealed to the Immigration Appeal Division. But, a subsequent decision of the Immigration Appeal Division is reviewable by the Federal Court. TYPES OF ERRORS A FEDERAL COURT WILL INTERVENE ON: (some common examples) Decision-maker breached the duty to act fairly Decision-maker ignored evidence Decision is unsupported by the evidence that was before the decision-maker Decision-maker erred in understand the law on a particular subject, or erred in the application of the law to the facts of the case Decision-maker misunderstood or misconstrued facts Decision-maker was biased MUST GET LEAVE Leave = permission to argue your case in front of a judge Decision on Leave made on written materials filed by all parties Criteria for granting Leave: o Whether a fairly arguable case is disclosed for the relief sought if Leave were granted o Not the Leave judge s job to determine who might have chance of winning ultimately 3

4 SPECIFIC EXAMPLES OF DECISIONS THAT CAN BE REVIEWED BY THE FEDERAL COURT: Visa Office refusals of: o Visitor visas o Student Visas o Work Permits o Temporary Resident Permits o Permanent residence applications (except Family Class sponsorships where the applicant is a member of the Family Class) Service Canada refusals of LMOs CIO refusals Provincial Nominee refusals (JR to the Court of Queen s Bench, not Federal Court) Pre-Removal Risk Assessments Humanitarian and Compassionate Cases Sponsorship under the Spouse in-canada class Live-in Caregiver Class Applications for temporary visa extensions, etc. made in Canada (CPC-Vegreville) o Visitor extensions o Student visa extensions or changes to conditions o Work permit extensions or changes to conditions o Restoration o Temporary Resident Permits (TRPs) Citizenship (appeal, not Judicial Review) Decisions of a tribunal in Canada o Refugee Protection Division on a refugee decision (for now until Refugee Appeal Division operational) o Immigration Division on a removal order decision o Immigration Appeal Division sponsorship appeals, residency appeals, removals appeals 4

5 PRACTICAL TIPS FOR CONSULTANTS FILE MANAGEMENT!!! o Always keep complete copies of all applications and supporting documents you filed for the client (if the refusal was for a case you assisted the client with) o Always provide clients with copies of anything sent to or received from immigration on their behalf o Ensure clients have all the documents related to their application, and the refusal letter, for their appointment with a lawyer Determine immediately: o Is this a decision where judicial review is possible? o When did the client receive the decision? Determine filing deadline DO NOT provide any opinions on merits of application for Judicial Review not authorized/licenced to do so Contact a good lawyer with experience in judicial review matters book consultation appointment for client with lawyer (or give referral to client directly) 5