Federal Court Judicial Review

Federal Court judicial review is the central legal remedy for challenging unreasonable, procedurally unfair, or legally incorrect decisions made by Immigration, Refugees and Citizenship Canada (IRCC), the Canada Border Services Agency (CBSA), and the Immigration and Refugee Board (IRB). Unlike administrative reconsideration or reapplication strategies, judicial review is a structured litigation process governed by strict statutory timelines, precise procedural rules, and a high evidentiary threshold. It requires sophisticated legal drafting, rigorous analysis of administrative law principles, and familiarity with Federal Court jurisprudence. Following is a comprehensive treatment—at a depth suitable for legal professionals—explaining how judicial review functions, when it is appropriate, and how a skilled lawyer approaches the process step by step.

Judicial review does not re-hear the immigration application. It does not accept new evidence. It is not an appeal on the merits. Instead, the Court reviews whether the administrative decision—usually an IRCC refusal, an IRB determination, or a CBSA enforcement action—was made lawfully, reasonably, and fairly. The focus is on the quality of the decision-making process, the justification provided by the officer, and the consistency of the decision with legislation, regulations, policy, and case law. Applicants must meet stringent deadlines (15 or 60 days) to file an application for leave. Missing these deadlines almost always results in losing the right to challenge the refusal.

Purpose and Scope of Judicial Review

Judicial review is designed to ensure:

• administrative accountability,
• fair decision-making,
• reasonable interpretation of law and evidence,
• consistency with procedural fairness,
• compliance with IRPA, IRPR, and the Canadian Charter of Rights and Freedoms.

The Court does not substitute its own decision. Instead, if the judge finds the decision unreasonable or unfair, the matter is returned to a different decision-maker for re-determination. Judicial review is therefore both corrective and supervisory, ensuring that the immigration system operates within legal boundaries.

Common Immigration Decisions Challenged at Federal Court

A wide range of immigration, refugee, and citizenship decisions may be challenged:

• Study permit refusals (credibility, purpose of visit, ties).
• Work permit refusals (LMIA issues, job genuineness, work experience credibility).
• Visitor visa refusals (intent, ties, financial sufficiency).
• Permanent residence refusals (Express Entry, H&C, sponsorship, economic programs).
• Medical inadmissibility findings.
• Misrepresentation decisions (five-year bans).
• Residency obligation decisions for PRs.
• Refugee decisions (RPD refusals, RAD decisions).
• Enforcement actions (removal orders, detention decisions).
• Citizenship refusals and revocation cases.

Any immigration decision that is arbitrary, unreasonable, or procedurally unfair may be challenged.

Timeline: 15-Day and 60-Day Deadlines

Judicial review begins with filing an Application for Leave and Judicial Review (ALJR). The deadline depends on where the decision was made:

• 15 days: decisions made inside Canada.
• 60 days: decisions made outside Canada.

These deadlines are strict. Courts rarely offer extensions. Missing them usually eliminates all judicial remedies and may close the door on future applications.

Step-by-Step Judicial Review Process

1. Filing the Notice of Application

The process starts with filing an Application for Leave and Judicial Review. This is a concise legal document identifying:

• the decision being challenged,
• legal issues involved,
• relief sought,
• grounds for review.

This must be filed within the statutory deadline.

2. Requesting the Certified Tribunal Record (CTR)

The CTR is the official package of documents used by the decision-maker. It typically includes:

• application forms,
• GCMS notes,
• submitted evidence,
• officer’s notes,
• hearing transcripts (for IRB decisions).

A lawyer must review every page to identify errors, omissions, and unreasonable reasoning.

3. Preparing the Applicant’s Record

This is the core litigation document, containing:

• Appellant’s affidavit,
• Written argument (memorandum of fact and law),
• Relevant jurisprudence,
• Key documents from the CTR.

Affidavits must be precise—new evidence is generally inadmissible unless used to prove procedural fairness violations or background facts.

4. Respondent’s (Department of Justice) Record

The Department of Justice (DOJ) lawyers represent IRCC or CBSA. They file:

• a memorandum of argument,
• factual points,
• case law supporting the decision.

The DOJ aims to defend the reasonableness of the officer’s decision.

5. Reply by the Applicant

The applicant may file a reply addressing points raised in the DOJ submissions.

6. Leave Decision

A Federal Court judge reviews written materials to determine whether the case deserves a full oral hearing. Approximately 15–25% of applications receive leave. Experienced legal drafting significantly increases the likelihood of passing this threshold.

7. Hearing (If Leave Is Granted)

If leave is granted, the Court schedules an oral hearing (generally 90 minutes). Counsel must argue:

• that the decision is unreasonable under the Vavilov framework,
• that the officer failed to consider relevant evidence,
• that reasons were inadequate,
• that procedural fairness was breached.

No new evidence is introduced. Legal argumentation is the primary tool.

8. Judgment

If the applicant succeeds, the Court:

• sets aside the decision,
• sends the matter back to a new officer for redetermination.

In rare cases, the Court issues directions on how the new decision must be made.

The Vavilov Framework: Legal Standard of Review

The Supreme Court of Canada decision Canada (Minister of Citizenship and Immigration) v. Vavilov established the modern standard of review. Key elements include:

• Reasonableness is the presumptive standard.
• Reasons must be “intelligible, justified, transparent, and responsive.”
• The officer must meaningfully engage with key evidence.
• Decisions must align with legislation, policy, and caselaw.

A decision may be unreasonable if the officer:

• ignores important evidence,
• misconstrues evidence,
• misapplies legal tests,
• fails to provide adequate reasons,
• relies on irrelevant considerations,
• makes findings not supported by the record.

Procedural Fairness: When Fairness Is Violated

Even when reasoning appears adequate, a breach of procedural fairness can invalidate a decision. Common fairness breaches include:

• failure to give the applicant an opportunity to respond to credibility concerns,
• failure to issue a procedural fairness letter,
• failure to request clarifying documents,
• using extrinsic evidence without disclosure,
• officer bias or prejudgment,
• translation errors or incorrect interpretation of documents,
• refusing to consider key evidence.

Fairness breaches often arise in misrepresentation, medical, or complex eligibility decisions.

Judicial Review for Temporary Residence Refusals

Study, work, and visitor visa refusals are common grounds for Federal Court challenges. These refusals often contain:

• vague reasoning (“not satisfied you will leave Canada”),
• assumptions not supported by evidence,
• inconsistent findings,
• misinterpretation of SOPs or employment letters.

Skilled counsel examines each officer note and highlights errors that render the decision unreasonable.

Judicial Review for Permanent Residence Decisions

Permanent residence refusals—Express Entry, PGP, H&C, spousal sponsorships, economic programs—are subject to judicial review. Issues often include:

• failure to consider humanitarian evidence,
• incorrect application of eligibility requirements,
• misinterpretation of medical or security concerns,
• lack of procedural fairness.

Express Entry refusals may involve complex CRS assessment issues or document credibility problems.

Judicial Review for Refugee Matters

Refugee decisions by the RPD or RAD may be challenged on grounds such as:

• credibility assessment errors,
• failure to consider country evidence,
• misapplication of the legal test for persecution,
• lack of fairness during hearings.

Stay motions are common when removal is imminent.

Judicial Review and Inadmissibility

Inadmissibility decisions—misrepresentation, medical, criminality, security—require detailed legal challenge. These decisions carry severe consequences:

• five-year bans,
• loss of PR status,
• removal orders,
• visa refusals.

Judicial review is often the only remedy to reverse these findings.

Emergency Federal Court Applications

Urgent matters often require:

• Stay motions to stop removal.
• Mandamus applications for unreasonable delays.
• Injunctions for enforcement issues.

These require rapid drafting, sworn affidavits, and strong legal argument.

Effect of Winning Judicial Review

A common misconception is that winning judicial review grants a visa or status. It does not. Instead:

• The decision is quashed.
• The matter returns to a new officer.
• A fresh decision must be made fairly and lawfully.

The new decision-maker cannot simply repeat the original officer’s errors.

Importance of Skilled Legal Counsel

Judicial review is a highly technical area requiring advanced legal training, research skills, and litigation experience. A strong case requires:

• strategic issue identification,
• mastery of administrative law principles,
• clear and precise legal writing,
• effective oral advocacy.

Poorly drafted applications almost always fail at the leave stage.

Summary of Key Principles

• Deadlines are strict (15 or 60 days).
• No new evidence except fairness-related evidence.
• Legal analysis under Vavilov is essential.
• Winning results in redetermination, not approval.
• Judicial review is the only remedy for most refusals.

Federal Court judicial review remains one of the most important safeguards in the Canadian immigration system, ensuring that administrative decisions are lawful, justified, and fair.