Leave & Judicial Review Strategy

Judicial Review before the Federal Court is a highly technical and strategic process. While many applicants focus on the final hearing, the reality is that most cases are decided at the leave stage. Only a small percentage of applications are granted leave, which means the majority are dismissed on the written record alone, without an oral hearing. A strong Leave & Judicial Review strategy must therefore focus on rigorous legal argument, precise issue framing, and a highly structured approach to the administrative law standards established by the Supreme Court of Canada in Vavilov. Poorly drafted arguments, incomplete records, irrelevant evidence, or emotional submissions will almost certainly fail at the leave stage.

Let's have an in-depth, professional, litigation-focused guide on how to build a winning Leave & Judicial Review (JR) strategy. It covers the legal framework, timelines, issue identification, evidence, jurisprudence, drafting techniques, common pitfalls, oral hearing preparation, and post-judgment action. It is designed for counsel, advanced immigration practitioners, and applicants facing complex or high-stakes litigation.

Understanding the Two-Stage JR Framework

Judicial Review has two distinct stages:

1. Leave Stage

The Court examines whether the case merits a full hearing. Most applications end here.

2. Judicial Review Hearing (if leave is granted)

Counsel argues the case before a judge in person or via videoconference.

Legal Framework

Leave & JR proceedings rely on:

• Federal Courts Act,
• Federal Courts Rules,
• IRPA,
• Vavilov (standard of review),
• administrative law jurisprudence including reasonableness, procedural fairness, and natural justice.

Timelines

• 15 days (inside Canada)
• 60 days (outside Canada)

The Notice of Application must be filed within these strict deadlines. Late filings are rarely accepted.

Strategic Identification of Reviewable Errors

A successful JR strategy begins with identifying reviewable errors. These must be errors that the Court has jurisdiction to consider. The strongest arguments fall into the following categories:

1. Failure to Consider Key Evidence

• ignoring central documents,
• selective or biased reading of evidence,
• no engagement with contradictory evidence.

2. Unreasonable Findings

Under Vavilov, a decision is unreasonable if:

• the reasoning is illogical,
• conclusions do not follow the evidence,
• the pathway of reasoning cannot be understood.

3. Procedural Fairness Violations

• failure to provide a Procedural Fairness Letter (PFL),
• surprise evidence or allegations,
• lack of opportunity to respond,
• issues of bias or unfair conduct.

4. Incorrect Application of Law

• misapplying statutory criteria,
• using incorrect legal tests,
• misunderstanding the burden of proof.

5. Misinterpretation of Country Conditions

• relying on outdated reports,
• ignoring relevant parts of NDP packages,
• using irrelevant or misleading information.

6. Credibility Errors

• overreliance on trivial inconsistencies,
• demeanor findings unsupported by evidence,
• failure to consider trauma or vulnerability.

Structuring the Applicant’s Record

The Record must be:

• organized,
• indexed and tabbed,
• free of irrelevant material,
• supported by pinpoint references to evidence already before the decision-maker.

Do NOT include new evidence unless:

• it proves procedural unfairness, or
• it is part of the certified tribunal record.

Building Persuasive Written Submissions

Written submissions are the single most important part of the leave stage. Strong submissions are:

• highly structured,
• deeply legal,
• evidence-based,
• authoritatively cited,
• focused strictly on reviewable errors.

Key Elements of Effective Written Argument:

• concise overview of facts,
• clear identification of errors,
• explanation of why the errors are material,
• application of the Vavilov framework,
• case law comparison with similar precedents,
• a confident and structured “path to unreasonableness.”

Citing Jurisprudence Strategically

Case law must:

• directly support the argument,
• come from Federal Court or FCA,
• be recent and well-known,
• be used sparingly to reinforce—not replace—logic.

Preparing for the Oral Hearing

If leave is granted, preparation shifts to:

• anticipating Minister’s arguments,
• identifying weaknesses in the certified record,
• refining the unreasonable/legal error arguments,
• focusing on 2–3 strongest issues.

Oral advocacy must be:

• precise,
• evidence-based,
• non-emotional,
• structured into logical points.

Stay of Removal Strategy

If the applicant faces deportation before the JR hearing, counsel must file a stay motion. This involves:

• a detailed affidavit,
• documentary exhibits,
• hardship analysis,
• country conditions evidence,
• risk and procedural fairness arguments.

Post-Judgment Strategy

If the JR is allowed (success):

• the decision is quashed,
• returned to a different officer or Member,
• prepare for a strong re-determination process.

If the JR is dismissed:

• consider FCA appeal (rare),
• explore new applications (H&C, TRP, PRRA, ARC),
• prepare risk-based options if removal is imminent.

Role of Skilled Litigation Counsel

Successful JR strategy requires:

• expertise in administrative law,
• high-level legal writing,
• case law fluency,
• strategic framing of issues,
• mastery of the Federal Court Rules,
• ability to move quickly on tight timelines.

A sophisticated Leave & Judicial Review strategy dramatically increases the likelihood of overturning unjust immigration decisions and securing a second chance in Canada’s immigration system.