Judicial Review and Immigration in Canada: A Simple Guide

by Landmark Law

Introduction

In Canada, judicial review is like a watchdog ensuring that immigration authorities and other administrative bodies make decisions that are fair and lawful. This process is crucial in making sure that when immigration officers or the Immigration and Refugee Board (IRB) make decisions, they do so with transparency and accountability. Here, we'll take a closer look at what judicial review entails, why it matters, the steps involved, and the limits on what courts can do when it comes to immigration decisions.

Understanding Judicial Review

Think of judicial review as a way for a court to double-check those decisions made by government departments, like immigration offices, are fair and lawful. If you feel an immigration officer, the IRB, or even the Minister of Immigration has made a decision that doesn’t sit right with the law, you can challenge it through this process.

It's important to note that judicial review is not about re-arguing the case itself or going through all the evidence again. Instead, it's about checking whether the decision was made fairly and legally.

Grounds for Judicial Review

There are several grounds on which judicial review can be sought in immigration matters. These grounds include:

Error of Law: This occurs when the decision-maker applies the wrong legal principles or misinterprets the law. For example, if an immigration officer incorrectly applies the legal standard for admissibility to Canada, a judicial review may be sought.

Procedural Fairness (Natural Justice): Immigration decisions must be made in a manner that is procedurally fair. If a party is denied the opportunity to be heard, the decision is made without adequate notice, or the decision-maker is biased, the decision can be challenged on the grounds of procedural unfairness.

Unreasonableness: If a decision is so unreasonable that no reasonable decision-maker could have made it, it may be overturned. This standard was clarified by the Supreme Court of Canada in Dunsmuir v. New Brunswick (2008), where the Court adopted the "reasonableness" standard for most administrative decisions.

Bias or Lack of Impartiality: A decision may be challenged if there is evidence that the decision-maker was biased or lacked impartiality. This could occur if an immigration officer or board member has a personal interest in the case, or if their conduct suggests a lack of neutrality.

Failure to Consider Relevant Factors: If a decision-maker fails to take into account critical evidence or relevant factors, this can form the basis for a judicial review. For example, if an immigration officer ignores medical evidence in an inadmissibility hearing, the decision could be subject to review.

Excess of Jurisdiction: A decision may also be challenged if the immigration body or official acted beyond the authority granted to them under the Immigration and Refugee Protection Act (IRPA) or other relevant laws. For example, if an immigration officer makes a decision that exceeds their delegated authority, the decision could be challenged in court.

Judicial Review Process

Judicial review of immigration decisions is generally conducted by the Federal Court of Canada. The process can be initiated when a person who is adversely affected by an immigration decision, such as a visa refusal, deportation order, or refugee claim denial, seeks to have the decision reviewed by the court.

Filing an Application: The process begins when the applicant files an application for judicial review with the Federal Court. This application must be filed within a strict time limit (usually 15 days for decisions made by immigration officers or the IRB, or 60 days for Ministerial decisions).

Record of Proceedings: Once the application is filed, the applicant must obtain the record of proceedings from the immigration authority that made the decision. This record includes all documents, evidence, and transcripts related to the case and will form the basis of the court's review.

Court Review: In the Federal Court, the applicant typically argues that the decision was unlawful, unreasonable, or unfair, based on one or more of the grounds mentioned above. The court does not re-hear the facts of the case, but rather examines whether the decision-maker followed the correct legal procedures and adhered to the principles of fairness and justice.

Outcome of Judicial Review: If the Federal Court finds in favour of the applicant, it may order one of several remedies, including:

  • Setting aside the decision: The decision may be declared invalid, and the matter may be sent back to the immigration body for reconsideration.
  • Remitting the matter: The court may send the case back to the immigration body for a new decision, ensuring that the decision-making process is corrected.
  • Issuing an order: In some cases, the court may issue a specific order, such as ordering the government to process an application or reconsider a decision.

However, it is important to note that judicial review does not provide a second chance to litigate the facts of the case; rather, it focuses on the legal validity of the original decision.

Limitations of Judicial Review

While judicial review is an essential tool for ensuring fairness and accountability in immigration decisions, there are certain limitations to this process:

No Reconsideration of Facts: Courts will not review the factual findings or the merits of the case. Judicial review is concerned only with the legality and fairness of the decision-making process.

Discretionary Nature: Courts have discretion in deciding whether to grant judicial review, and even if an applicant can show a legal error, the court may still decide not to intervene if it concludes that the error was not significant enough to warrant overturning the decision.

Standing: Only those who have a direct and legitimate interest in the matter (e.g., the applicant, their legal representative, or certain intervenors) can seek judicial review. It is not available to the general public or to individuals who have no direct stake in the decision.

Time Limitations: Judicial review applications must be filed within a specified time frame, and failure to do so can result in the dismissal of the application. This strict timeline ensures that immigration decisions are finalised in a reasonable amount of time and reduces the backlog of cases in the courts.

Limited Scope for Ministerial Discretion: Some immigration decisions are made at the discretion of the Minister of Immigration, Refugees and Citizenship Canada, and the court may be reluctant to interfere with decisions that fall under the Minister's broad discretion, such as certain inadmissibility determinations or decisions related to humanitarian and compassionate grounds.

Conclusion

Judicial review is essential in keeping the immigration process fair and just in Canada. While it allows for challenging decisions that seem off, it’s crucial to understand that it’s not about re-arguing the case from scratch. Given the complexities and ever-changing nature of immigration law, judicial review remains a vital tool for individuals seeking fairness and transparency.

Understanding the grounds, procedures, and outcomes of judicial reviews can help individuals better navigate their immigration challenges and ensure they get a fair hearing in the Canadian legal landscape.