In context of order which is challenged in higher court: In appeal, the higher court can substitute the opinion of lower court with its own opinion. In judicial review, the higher court considers whether the lower court’s order is correct or not and if not, it directs the lower court to decide the matter again.
Appeal to the Immigration Appeal Division (IAD)
The Immigration Appeal Division (IAD) is a recognized body in Canada to hear appeals on issues related to immigration such as issuance of removal order, a sponsorship application getting rejected, residency obligation violation, or problems related to errors in application forms leading to their rejection.
Immigration applications are a tricky business and can get rejected for a number of reasons ranging from misinformation to a complicated immigration history. However, every applicant is given an opportunity to make an appeal to the tribunal for a re-assessment of his file/case. Appeals are all time-bound and have to be made within the prescribed timeframe. Every program has different time limits set for making an appeal to the IAD. An appeal to the IAD is taken further by a Board Member who reviews the decision of the officer and also evaluate documents submitted by the officer and the applicant. New evidence or documentation is acceptable. If the decision of the appeal is in favour, your case will go back to the immigration office to a different officer to re-assessment.
The programs under which you are permitted to make an appeal are –
- Family Class Sponsorship
- Spousal Sponsorship
- Removal Order
- Residency Obligation
Judicial Review at the Federal Court of Canada
The Federal Court of Canada is the national court responsible for managing legal disputes registered under the federal domain. According to the Canadian law, an applicant can ask the Federal Court to review immigration decisions. Such a review application in the Federal Court of Canada is time-bound. The time limit differs for every program, for instance, the timeframe for a rejection on spousal sponsorship visa might be different from time given for a refugee claim review. A person who applies for Judicial Review on any immigration-related issues falls under the Immigration and Refugee Protection Act (IRPA).
A review at the Federal Court will be conducted in 2 stages –
- Application for Leave: The first stage, also called the Leave Stage, is where an applicant submits a request for review with detailed explanation of why he/she feels that the decision on his/her application was unfair, biased or erroneous. If Federal Court permits Leave, it means that it grants you the review and has consented to re-examine your case.
- Judicial Review: Here, the applicant is required to attend the oral hearing before the Federal Court and represent himself/herself. The applicant will be explaining to the Court in-person why he/she thinks that the immigration officer’s decision is wrong. The hearing for the judicial review is held within 30-90 days of leave granting. You can represent your case yourself or can hire an immigration lawyer to represent you for hearing. Then, you are free to attend or miss your hearing. The onus of granting or refusing visa does not rest with the Federal Court but it decides if an immigration officer has failed to review a case as per the Canadian Immigration Laws. Whenever a decision of an immigration officer is proven unfounded, the case is sent back to be re-examined by a different immigration officer. However, if the Court concurs with the decision if the immigration officer, the applicant will have to stick with the final verdict on his file. The refusals which can be judicial reviewed by the Federal Court of Canada directly are –
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- Federal Skilled Worker (FSW)
- Canadian Experience Class
- Provincial Nominee Program
- Investor, Start-Up and Entrepreneurial Appeal
- Live-in Caregiver
- Work Permit and Study Permit
- Temporary Resident Visa
- Humanitarian and Compassionate (H&C)
- Pre-Removal Risk Assessment
- Request for Deferral
- Family Class Sponsorship
- Spousal Sponsorship
- Residency Obligation
- Removal Order
- Refugee Claim or Protection Claim
Judicial Review is a complex issue and demands a great insight into Canadian laws. We do not advise people to deal with judicial reviews independently. Not only is there a lot of room of misjudging a legality but collecting right documents can also become a difficult task. We have a team of highly committed, confident and experienced professionals who can assist you in every possible manner. Consult Lexlords if you wish require professional assistance.