Judicial Review in Canadian Immigration

When an immigration application is refused – whether for a study permit, work permit, visitor visa, permanent residence, or refugee claim – it can feel like the end of the road. In many cases, there is no right of appeal. However, Canada’s immigration system provides a safeguard: the right to apply to the Federal Court of Canada for a judicial review (JR).

A judicial review does not re-argue your case or allow you to submit new evidence. Instead, it ensures the decision was made fairly, reasonably, and in accordance with Canadian law. This process is a vital check on immigration officers and tribunals, upholding the principles of justice and procedural fairness.

What is Judicial Review?

A judicial review is a legal process where a Federal Court judge examines an immigration decision to determine if:

• The decision-making process was procedurally fair (you had an opportunity to present your case, the officer was unbiased, reasons were provided).
• The decision was reasonable (the outcome was justified, coherent, and based on evidence).

It is not an appeal on the facts. The judge does not replace the decision with their own; instead, if an error is found, the court will quash (set aside) the decision and send it back for reconsideration by a different officer or panel.

When is Judicial Review Available?

Judicial review is the main recourse when no statutory appeal exists. It applies in cases such as:

• Temporary resident visa refusals (visitor, study, or work permits).
• Permanent residence refusals under economic programs.
• Findings of misrepresentation under IRPA s.40.
• Inland refusals of humanitarian & compassionate (H&C) applications.
• Refugee claims rejected by the Refugee Protection Division (if no RAD appeal is available) or after losing a RAD appeal.
• Decisions of the IAD or RAD where the appeal was dismissed.

In short, any immigration decision made by IRCC or the Immigration and Refugee Board (IRB) can potentially be judicially reviewed.

The Judicial Review Process

Step 1: Filing Deadlines

• 15 days if the decision was made inside Canada (e.g., an IRB ruling).
• 60 days if the decision was made outside Canada (e.g., a visa office refusal abroad).

Missing these deadlines almost always ends the right to judicial review.

Step 2: Leave (Permission) Stage

Most immigration JRs require leave (permission) from the Federal Court. The applicant submits written arguments explaining why the decision was unfair or unreasonable. A judge reviews the file and decides whether the case raises a serious issue. If leave is not granted, the case ends there.

Step 3A: DOJ Consent or Redetermination Before Hearing

In some cases, the Department of Justice (DOJ), which represents IRCC or the IRB in court, may review the applicant’s submissions and agree that the refusal contained legal or procedural errors.

• Instead of going to a hearing, the DOJ can consent to judgment, which sends the case back to IRCC/IRB for a new decision by a different officer or panel.
• This is often faster and avoids the uncertainty of a court hearing.
• Consent does not guarantee approval of the application; it only ensures that the case will be reconsidered fairly.

Step 3B: Hearing (if no consent)

If the DOJ does not consent, and leave is granted, the case proceeds to an oral hearing before a Federal Court judge.

• Lawyers for the applicant and the government present legal arguments.
• No new evidence or witness testimony is allowed.
• The judge reviews the record and reasons of the original decision-maker.

Step 4: Decision

The judge may:

• Allow the JR: The decision is quashed and returned for reconsideration.
• Dismiss the JR: The original decision stands.

If the DOJ had already consented earlier, the case skips this stage and is simply returned for redetermination.

Legal Standards: Baker and Vavilov

Judicial reviews in immigration are guided by key Supreme Court cases:

• Baker v. Canada (1999) – established the duty of procedural fairness. Officers must act fairly, consider all relevant evidence (including humanitarian factors like children’s best interests), and provide unbiased reasoning.
• Vavilov (2019) – clarified that reasonableness is the default standard for reviewing administrative decisions. Immigration rulings must be rational, coherent, and justified in light of the law and evidence.

Together, these cases ensure immigration decisions are not arbitrary and that applicants’ rights are respected.

Why Judicial Review Matters

Judicial review provides:

• Accountability: Ensures IRCC and the IRB follow the law.
• Fairness: Protects applicants from bias or unreasonable refusals.
• Resolution without full litigation: In many cases, DOJ consent leads to a redetermination, giving applicants another fair chance.
• A second chance: While the court won’t grant the visa itself, a successful JR or DOJ consent forces IRCC/IRB to reassess the application properly.