Benefits of Judicial Review: The Remedies Available to Immigration Applicants

Judicial Review provides applicants with important legal remedies when an immigration decision is unreasonable, procedurally unfair, affected by legal error, or when an application has been unreasonably delayed. These remedies are not about asking the Court to simply replace an immigration officer’s decision. Instead, they are designed to ensure that immigration decisions are made according to the law and that applicants receive a fair process.

1. Correcting Unreasonable Decisions (Certiorari)

One of the most common remedies available in Judicial Review is certiorari. In simple terms, certiorari is a request asking the Federal Court to review and set aside a decision that was not made properly. If the Court agrees that the decision was unreasonable, procedurally unfair, or affected by a legal error, it may set aside the decision and send the matter back for reconsideration, usually by another officer.

Certiorari does not mean that the Court will approve your application. Instead, it provides an opportunity for the application to be reviewed again through a lawful and fair process.

This remedy may apply where an officer failed to consider important evidence, misunderstood key facts, applied the wrong legal principles, or reached a conclusion that the evidence does not support. The Court may also intervene where procedural fairness was not respected. For example, if an officer relied on serious concerns that were never disclosed to the applicant, relied on assumptions instead of evidence, or failed to provide a meaningful opportunity to respond to credibility concerns or adverse information, the decision may be set aside.

When certiorari is granted, the Court does not replace the officer’s decision with its own. Instead, it requires the application to be reconsidered according to the law.

2. Addressing Unreasonable Delays (Mandamus)

Not every Judicial Review application involves a refusal. Sometimes, the issue is that an immigration application has remained pending for an unreasonable period without a decision.

In these situations, an applicant may seek mandamus. This remedy asks the Federal Court to order IRCC or another immigration authority to perform its legal duty and make a decision within a reasonable timeframe.

Mandamus compels action, but it does not determine what the outcome of the application should be. Its purpose is to address unreasonable delay and ensure that applicants receive a decision.

While other remedies may be available, certiorari and mandamus are the two most common remedies used by immigration applicants.

Applicants may seek Judicial Review from anywhere in the world. Whether you are in Canada or abroad, a refusal of a Canadian visa or immigration application may be challenged if valid legal grounds exist.

At A&M Canadian Immigration Law Corporation, we help clients identify the appropriate remedy, prepare strong submissions, and navigate the Federal Court process to ensure their case is presented effectively.