TO JR OR NOT TO JR? A PRACTICAL GUIDE TO ASSESSING THE MERITS OF JUDICIAL REVIEW IN THE IMMIGRATION CONTEXT Last updated: November 2012 Warren L. Creates, B.A., LL.B. and Jacqueline J. Bonisteel, M.A., J.D. Immigration Law Group Perley-Robertson, Hill & McDougall LLP/s.r.l. 1400-340 Albert Street, Ottawa Ontario, Canada KIR 0A5 tel: (613) 238-2022 fax: (613) 238-8775 wcreates@perlaw.ca / jbonisteel@perlaw.ca
1 1. Introduction: The Case of Gabino Zacarias In October 2012, the Ottawa Citizen reported the story of Gabino Zacarias, a Guatemalan refugee claimant living in Canada since 2008. 1 Zacarias alleged that he had faced death threats from a street gang in his country, and that he feared for the lives and well-being of himself and his family. He fled to Canada, leaving his wife and three children behind. In May 2010, Zacarias appeared before the Immigration and Refugee Board (IRB) for an oral hearing of his refugee claim. The Board found him credible, but denied refugee protection on the basis that the risk he faced was too generalized to meet the requirements for Convention refugee status. Zacarias sought judicial review of that negative decision, and successfully had it overturned by the Federal Court in January 2011. 2 Pursuant to the limited relief that the Federal Court can award on judicial review, Zacarias case was then sent back for a new IRB hearing. In August 2011, the Board again denied his claim, this time on the basis of credibility. Zacarias then sought yet another judicial review and, in October 2012, the Federal Court again overturned the IRB decision, this time concluding that the credibility findings were erroneous. 3 Both applications in the Federal Court were opposed by counsel of the Department of Justice. Zacarias is now awaiting a third hearing before a new member of the IRB. This case highlights some of the frustrations inherent in the judicial review process. It is arduous, expensive, protracted, adversarial, and all too often unsatisfactory. Judicial reviews can be won only on a narrow set of grounds, and even a win can ultimately end in disappointment, as it simply results in an opportunity to go back and have the application reevaluated by a new officer or Board member. In Zacarias case, even if he is ultimately successful, his fight has been stressful, and has kept him separated from his family in a state of legal limbo for years. In our office, we meet many individuals and families seeking to overcome an unfavourable decision by an immigration officer (inside Canada), by a visa officer (outside Canada) or by an IRB member (inside Canada). Many such people state, during the early communications, that they will do whatever it takes to overcome the rejection, which they normally find unreasonable, unfair, or just plain wrong. Judicial review is one of the available means to do so. However, applicants should not embark on the judicial review process simply because it is available. Each applicant must be aware of all relevant considerations, and must carefully assess whether it is the right choice. This paper is intended to help both practitioners and potential applicants evaluate whether judicial review is advisable on a practical level, given factors such as cost, timeframe, likelihood of success, and the applicant s willingness to take on the risks involved. 1 Don Butler, Federal Court overturns erroneous IRB decision denying Ottawa man s asylum claim Ottawa Citizen, 10 October 2012 <http://www.ottawacitizen.com/news/federal+court+overturns+erroneous+decision+denying+ottawa+asy lum+claim/7370809/story.html>. 2 Aguilar Zacarias v. Canada (Citizenship and Immigration), 2011 FC 62 (CanLII). 3 Aguilar Zacarias v. Canada (Citizenship and Immigration), 2012 FC 1155 (CanLII).
2 2. The Legal Framework a) Leave Required in Immigration and Refugee Matters Applications for judicial review to the Federal Court are governed by s. 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7. In immigration and refugee matters, the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ( IRPA ) also apply. The IRPA includes a requirement to obtain leave to commence an application for judicial review. Note that this is not the case in citizenship matters, to which the IRPA does not apply. 4 The concept of leave is often unfamiliar to potential applicants. Pursuant to s. 72 of the IRPA, in immigration and refugee matters, the Federal Court will not automatically hear every application for judicial review that is filed. The applicant must first provide some evidence that demonstrates the existence of a fairly arguable case, on fairly arguable grounds, and a serious question to be determined. 5 Put another way, the Court must be convinced that there is a reasonable chance that the application will succeed. If the Court is not persuaded, leave will be denied and the application will not be permitted to go before the Court. 6 The application for leave will be disposed of without a hearing on the basis only of the parties written submissions. Where leave is denied, no reasons are provided, and no appeal of the court s decision is available. 7 Where leave is granted, the judge granting leave will fix the date and place for the judicial review hearing. 8 The materials filed on the application for leave will form part of the record on the application for judicial review. b) Judicial Review vs. Appeal It is essential for potential applicants to understand that a judicial review is distinct from an appeal. When a decision is subject to appeal, the appellate body has the power to replace the earlier decision with its own decision and reasons. For example, in the criminal context, where an accused appeals a conviction at trial, the appeal court can overturn that conviction and conclude that the accused was not guilty. Barring any further appeals, the appellate court s decision is final, and the accused is free to go. Conversely, on judicial review to the Federal Court, the Court does not enjoy this power to replace the impugned decision with its own. Instead, if the Court agrees that errors were 4 Refusals of citizenship by a citizenship judge are subject to an appeal pursuant to s. 14(5) of the Citizenship Act. Refusals of citizenship by an officer may be judicially reviewed pursuant to s. 18(1) of the Federal Courts Act. Leave is not required. Still, many of the considerations outlined in this paper will be relevant when considering whether to pursue judicial review of an officer s decision with regard to citizenship. 5 Wu v. Canada (Minister of Immigration), [1989], 2 F.C. 175. 6 Kurniewicz v. Canada (Minister of Manpower and Immigration) [1974], F.C.J. No. 922; Virk v. Canada (Minister of Employment and Immigration) [1991], F.C.J. No. 72. 7 IRPA at s. 72. 8 IRPA at s. 74.
3 made and review is warranted, it will grant the application for judicial review and send the file back to be heard by a new officer or Board member. Thus, the Federal Court s word is not final. A victory on judicial review results merely in an opportunity to have one s application heard anew. While judicial review is a distinct process, the court procedures set out in the Federal Courts Rules, SOR/98-106 are generally applicable unless otherwise provided. For instance, motions may be made at various points of the judicial review process for remedies including extensions of time, stays of removal, consolidation, adjournments or non-disclosure. c) Grounds for Judicial Review Another common misconception of potential applicants is that they may present new evidence on judicial review, and may argue any point that could prove helpful to their case. In reality, judicial review is available only on narrow grounds. S. 18.1(4) of the Federal Courts Act sets out the grounds for judicial review: (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. Thus, it is not enough for an applicant to assert that a decision-maker reached a result that was incorrect, or to present a new document that may have impacted the result had it been before the decision-maker. The decision-maker must have made some legal error within the confines of section 18.1 of the Act, such as failing to follow a required procedure, failing to consider relevant evidence, or exhibiting bias. No new evidence can be presented at the judicial review stage. The application must be based upon the existing record alone. Judicial review is precluded where the IRPA provides for an appeal. Thus, when the Refugee Appeal Division becomes operational, 9 judicial review will cease to be available to review a refugee determination decision that is within the jurisdiction of the Refugee Appeal Division. The chart on the following page summarizes the steps of the judicial review process. 9 The RAD will become operational when the Protecting Canada s Immigration System Act comes into force. For more information, see the Immigration and Refugee Board bulletin at <http://www.irbcisr.gc.ca/eng/reform/pages/rac31sr-radsar.aspx>.
4 Refusal Decision Applicant files Application for Leave to Seek Judicial Review (Federal Court) Within 60 days if decision outside Canada; within 15 days if decision in Canada Respondent files Notice of Appearance within 10 days Applicant prepares record (affidavits, memorandum of argument etc) within 30 days of initiating process or receiving tribunal s reasons Respondent files affidavits / memorandum of argument Within 30 days Applicant files reply memorandum Within 10 days Court determines whether to grant leave Usually takes several months If leave granted, court will set a hearing date 30-90 days from date of order granting leave If leave not granted, process ends (no right of appeal) Parties appear and make oral submissions Judge renders decision If application allowed, go before new administrative decision-maker If application denied, process ends (**appeal to Federal Court of Appeal available only if certified question of general importance)
5 3. Practical Considerations a) Time frame Judicial review is a lengthy process. This is particularly true in immigration and refugee cases, as the Court must first grant leave. Typically, applicants should expect to wait from six months to one year to receive a final decision from the Federal Court. More time still will pass if the application is successful and a new decision-maker must re-evaluate the original decision and provide a new assessment. Where the new application is successful, processing times may further delay the granting of status. The process is lengthy, but it must also be initiated in a timely manner. An application must be commenced within 15 days from the date the decision was communicated to the applicant if the decision was made in Canada, or within 60 days if the decision was taken outside of Canada. If an extension of time is needed, the applicant must file the extension request at the same time as the application for leave, meaning that all affidavits and written submissions must be prepared concurrently with the request. A decision on whether to grant an extension is made at the same time as the decision to grant leave. Thus, there is a risk that an applicant or their counsel will incur significant time and expense preparing the full leave application, only to have their request for an extension of time denied. If the deadlines for initiating the process have already passed, the strength of the argument justifying an extension of time must be considered, as well as the additional legal fees for preparing the request. Applicants must understand that judicial review is far from a quick fix. They must be prepared to take on the long-term commitment to see the application through, and must be aware that years may pass before status is obtained, if it is obtained at all. Each individual applicant must consider whether it is worth their time, effort and expense to pursue judicial review. b) Cost Cost may not be a consideration for clients who can fund their judicial review through Legal Aid, but ability and willingness to pay should be a concern for all others. Lawyers will charge different rates but, given that judicial review is a time-consuming and involved process, fair compensation will require a significant financial commitment from clients. Applicants should obtain a frank estimate of legal fees up-front. The cost ought to be evaluated in the context of the likelihood of success, and the applicant s willingness to risk incurring the expense only to receive another negative result. c) Merits of the case and likelihood of success As detailed above, judicial review is only available on narrow grounds. The Federal Court affords significant deference to Board members or officers where they have acted within their jurisdiction and observed the requirements of procedural fairness. Thus, it is difficult to attack an unfavourable decision when it is based on negative credibility findings and is
6 backed by thorough reasons referencing the evidence. Even if a judge disagrees with the officer or Board member s final conclusion, he or she will very likely defer to that decisionmaker s findings if they are at all reasonable. Where a challenge can be based on a denial of procedural fairness, the case is likely to be much stronger. Procedural fairness is evaluated on the standard of correctness, so any failure to observe a principle of procedural fairness is likely to result in a successful judicial review. Reasons that are overly brief or unclear, a failure to consider relevant evidence, or an erroneous finding based on misinterpretation of evidence can provide solid grounding for a judicial challenge. Similarly, errors of law are evaluated on the correctness standard, and thus provide stronger grounds for judicial review. Where, for instance, a decision-maker has applied the incorrect legal test in forming a decision, the case for judicial review will be stronger. Even where the case for judicial review is compelling, applicants should not be misled into thinking that a strong argument necessarily translates to a high likelihood of success. A 2012 study by Sean Rehaag analyzed the judicial review outcomes of cases involving refugee determinations from 2005 to 2010. Only 14.44% of claimant applicants were granted leave. Of those granted leave, 43.53% were successful. Thus, only 6.35% of all applications for judicial review involving refugee determinations ultimately succeeded (that is, succeeded by having the negative refugee decision set aside with a reference back to the Board for a hearing de novo an even smaller percentage will then ultimately succeed in having status granted). 10 Rehaag s study uncovered significant variability in outcomes across judges. His conclusion was that the ultimate outcome of a judicial review hinges to a large extent on which judge hears and decides the case. 11 Unfortunately, there is considerable inconsistency in the Federal Court. Thus, even when a case has great merit, there is little assurance of a positive decision. Luck plays a significant role in results. Applicants are advised to have their case reviewed and evaluated by experienced counsel before making the decision to pursue judicial review. Counsel should provide an honest and frank evaluation, preferably in writing, of the merits of the case and prospects of success. d) Strategic considerations For applicants who are living in Canada, it may be in their interest to delay departure by pursuing judicial review. A removal order is automatically stayed until the time for filing an application for leave has elapsed and, if the application is filed within the time limit, until it is finally disposed of by the Court. 12 While an applicant is in Canada awaiting disposition of their judicial review application, the additional time in Canada can be spent establishing ties to this country, which can be beneficial for eventually making an application on humanitarian 10 Sean Rehaag, The Luck of the Draw? Judicial Review of Refugee Determinations in the Federal Court of Canada (2005-2010) Osgoode CLPE Research Paper Series 8.3. (2012) at 14. 11 Ibid. at 28-29. 12 IRPA at s. 231.
7 and compassionate grounds, if this becomes appropriate. However, pursuing judicial review for strategic purposes alone is rarely advisable. There must be some basis for review to justify the cost and commitment involved. It should also be noted that the Court will not look favourably upon an application that is clearly without merit. In immigration and refugee protection matters, the Court generally will not award costs against the losing party, but this is possible in special circumstances. 13 Bringing a clearly unfounded case that wastes the resources of the parties and the Court may be considered such a special circumstance. e) Alternatives to judicial review In some cases, attractive alternatives to judicial review may exist. Applicants should be made aware of the costs, benefits and potential for success of each option. i) Temporary Resident Visa A Temporary Resident Visa (TRV) allows an individual to enter Canada for a short period of time. Most often, applicants seeking to judicially review a negative immigration decision are in pursuit of permanent residency, so a TRV will not be ideal. An applicant with a failed immigration application in the system is also likely to have a difficult time convincing an officer that he or she will leave at the expiry of the temporary visitor status granted pursuant to a TRV. However, where an applicant is located outside Canada and there is a compelling reason for immediate temporary entry, or where the case for judicial review is weak, this option may be worth considering. ii) Humanitarian & Compassionate Application Where the case for judicial review is not strong, an application for permanent residence on humanitarian and compassionate grounds ( H&C ) may be an alternative. H&C applications are requests for exceptions from the normal requirements on humanitarian grounds, where there is evidence that removal from Canada would result in unusual, undeserved or disproportionate hardship. 14 This application can be made where an individual has been living in Canada and can prove that hardship would result from their being forced to leave. The best interest of the child is a particularly important consideration, so if the applicant is a minor or is a parent of a child with status in Canada, an H&C case may be especially persuasive. It is important to note that H&C applications are in the process of being restricted. Applicants may no longer cite risk of persecution in the country of origin as an H&C factor. When Bill C-31 comes into force, those who are considered irregular arrivals or who come from countries designated as safe will not be able to apply for five years, and all rejected refugee claimants already face a one-year application bar. 15 13 Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 at s. 22. 14 Singh v Canada (MCI), 2009 FC 11 at para 18. 15 Tobi Cohen, Canada to admit 1,000 fewer newcomers on humanitarian grounds Vancouver Sun (5 November 2012)
8 An application for judicial review does not preclude a concurrent or subsequent H&C application. It is important to note that an applicant may be removed from Canada while an H&C application is being processed. A concurrent judicial review application may be a strategy for keeping an applicant in Canada for a longer period. However, as mentioned above, pursuing a judicial review for strategic reasons alone where the grounds for review are weak is a costly and usually inadvisable course of action. iii) Pre-Removal Risk Assessment Before this year, an application for a pre-removal risk assessment (PRRA) was an available option for preventing removal following a rejected refugee application made within Canada. However, amendments to s. 112 that came into force this year now require applicants to wait twelve months after the rejection of a refugee claim or a previous PRRA application before applying for a PRRA. 16 Certain countries may be exempted from this 12-month bar, but there are currently no exemptions for cases decided from 15 August 2012 onward. 17 As such, a PRRA is no longer a viable alternative to judicial review for most failed refugee claimants, given that removal is likely to be pursued within a year of the IRB decision. It may become an option if judicial review proceedings are undertaken and ultimately prove unsuccessful. iv) Re-Applying In refugee matters, claimants are not permitted to bring a new application for refugee status after being refused. However, in many other types of immigration matters, it is possible to simply re-apply. For instance, a refused applicant can always bring a new sponsorship application, a new application for a temporary resident permit, a new economic class immigration application, a new work permit application, or a new application for permanent residence on humanitarian and compassionate grounds. Where there are new facts to support a re-application, or where counsel can be retained to improve an application s quality, this may be the more cost-effective and quicker option, and may have a much higher prospect of success. f) Applicant Hardiness Finally, each applicant must consider whether, all factors considered, they are mentally and emotionally prepared to fight. A court challenge is always a lengthy and expensive process that can be a source of great strain. The process is normally adversarial: Department of <http://www.vancouversun.com/news/national/canada+admit+fewer+newcomers+humanitarian+grounds/ 7501966/story.html>. 16 IRPA at s. 112. 17 Citizenship and Immigration Canada, Operational Bulletin 440-E - August 15, 2012 Processing Existing Pre-Removal Risk Assessment (PRRA) Applications and Subsequent PRRAs that Are Subject to, or Exempted From, the 12-Month Bar (15 August 2012) <http://www.cic.gc.ca/english/resources/manuals/bulletins/2012/ob440e.asp>.
9 Justice lawyers are opposing counsel who take instructions from the Department of Citizenship and Immigration, which often fervently opposes the relief sought. Pursuing judicial review can mean lengthy separation from family members, and living in a state of uncertainty for years. For some applicants, obtaining status in Canada is their top priority, and even a small chance of success is worth pursuing, regardless of the cost. Others, particularly those who underestimate the costs, timelines, and effort involved, buckle under pressure. Applicants should be honest with themselves and with their counsel about how far they are willing to go. In turn, counsel must be up-front about what is involved and the potential for an unsatisfactory outcome. 4. Managing Expectations The bottom line in these types of cases is that it is not advisable to bring applications for judicial review as a matter of course in immigration and refugee cases. This lengthy, expensive and unpredictable option ought to be reserved for only the strongest cases and the most determined applicants. Immigration practitioners must provide their clients with a thorough review of the costs and benefits of judicial review, as well as any available alternatives. Applicants must fully understand the implications of a decision to go forward, and must recognize that, even in the most meritorious case, pursuing judicial review is a long and arduous gamble.