What judicial review is
Judicial review is not an appeal. The judge does not substitute their own decision for the Board member’s. The question is whether the decision was reasonable and whether the process was fair. If you succeed, the matter is sent back to the Board to be decided again, usually by a different member.
The Immigration and Refugee Board has four divisions. Before going to Federal Court, you usually must use any appeal available within the Board first.
Here are the typical Board decisions we handle:
- Refugee Appeal Division (RAD) decisions
- Refugee Protection Division (RPD) decisions where no RAD appeal is available
- Immigration Appeal Division (IAD) decisions
- Immigration Division (ID) admissibility and detention decisions
This is general information only, not legal advice. Every case is different. Please get independent legal advice about your own situation before deciding what to do.
Who is involved
- The applicant is the person challenging the decision, usually represented by a lawyer who prepares and argues the case.
- The Department of Justice (DOJ) represents the Minister. Its role is typically to defend the Board’s decision as reasonable and fair.
- The leave judge reviews the written materials and decides whether the case has sufficient merit for the Court to hold a hearing and hear each side’s full arguments.
- The hearing judge: if leave is granted, a different judge is typically assigned. That judge hears the full case, with oral argument from DOJ and your counsel, and makes a final decision.
The process, start to finish
The chart shows the typical path of a judicial review of a Board decision. Every case is different.
The Board issues its decision. The clock starts: 15 days for applications arising from inside Canada, 60 days for applications arising from outside Canada. Most Board decisions are made in Canada, so 15 days is the usual deadline.
Filed with the Federal Court within the deadline. It names the decision and the legal grounds, and states whether you already have the Board’s reasons.
You have 30 days from filing to perfect the application by filing the Application Record.
The Court requests the reasons from the Board (a “Rule 9” request) and shares them with both sides. The 30 days runs from the day you receive them.
The evidence that was before the Board plus the written legal arguments explaining why the decision should be set aside.
The refusal is set aside and a different Board member redetermines it, in exchange for discontinuing the case. This can happen at any point.
DOJ files its Respondent’s Memorandum within 30 days of receiving the Application Record.
Due 10 days after the Respondent’s Memorandum. It answers DOJ’s arguments rather than repeating the first brief.
A judge reviews the written materials only and decides whether there is an arguable case. This can take several months, and with a growing backlog, cases are taking longer.
If the leave judge does not believe there is an arguable case, they may deny leave. This is the end of the judicial review and the refusal stands. Typically, there is no further appeal or right to challenge.
If the leave judge decides there is an arguable case, leave is granted. DOJ may still offer settlement. Otherwise a hearing is set, typically about 90 days later, before a different judge.
Lawyers from both sides attend court and make oral arguments. Usually no new evidence is added, because the Court reviews the original decision and reasons. A written decision can take several more weeks.
The refusal stands, with no further right to challenge or appeal the decision (a very narrow exception exists).
The refusal is set aside and returned to the Board for a new decision by a different Board member. The Court does not decide the claim or appeal itself.
Removal may follow some Board decisions. If so, tell us immediately, because a stay of removal may be needed while the case is before the Court.
Can new evidence be added?
Generally no. The Court usually reviews the record that was before the Board, though there are exceptions.
How we help
We regularly represent clients in judicial reviews of Immigration and Refugee Board decisions. The Court generally looks only at what was before the Board and the deadline is short, so we start by reviewing the record and the reasons right away. Our team knows what these matters require and has the experience to prepare them carefully.
Here is what you can expect from us at each stage of a judicial review, and how we keep you informed along the way.
- Before we file: review and meetingWe review your full application, the decision and, if available, the Board’s reasons. We usually meet with you to collect the information we need and to see whether there is a potentially arguable case. On your instructions, we then file the Notice of Application for Leave and for Judicial Review.
- Filing quicklyWe typically aim to file within 24 to 48 hours of being retained, always within any deadline. Once the Notice is filed, you can follow your application on the Federal Court’s website.
- Receiving the reasonsIf we did not have the Board’s reasons when we filed, we email you a copy as soon as they arrive and set up a meeting.
- Second meeting: the reasonsWe go through the reasons with you in detail and consider whether they can be challenged under the law and the Federal Court’s case law. With the reasons in hand, we can advise you on the strengths and the challenges of your case. You then instruct us whether to continue with an application record or to discontinue. If you discontinue, we do not charge further fees. Firm to confirm fee terms before publishing.
- Application recordIf you continue, a lawyer prepares and signs the full application record. It includes the decision, all the evidence that was before the decision-maker, any further documents that ought to have been considered or are relevant, and a legal memorandum. The memorandum sets out the legal problems with the decision, the case law that supports you, and how the facts and the law support the Court granting the application. You receive a copy once it is filed.
- SettlementWhere appropriate, our team may approach the Department of Justice to explore settlement. This depends on the case.
- The Department of Justice respondsDOJ typically takes about 30 days to respond. We then file a reply with our final submissions.
- Leave decisionA leave judge decides the matter on the written record. Once we see the decision, we advise you on whether the matter proceeds to a hearing.
Throughout the process, we aim to keep you updated, advise you of any material change and involve you in the advocacy being done on your behalf.
What to bring
- The written decision and reasons
- Your Basis of Claim form or appeal record
- All evidence and disclosure filed with the Board
- Any removal or interview notices from CBSA
Questions
Is there an automatic stay?
In some refugee cases there may be, but often there is not. Lawyer to verify before publishing. We check this immediately.
Can I add new evidence?
Generally no. The Court usually reviews the record that was before the Board.
