Read this first: the deadline
Judicial review deadlines start running when you receive the decision: 15 days for applications from inside Canada and 60 days for applications from outside Canada. Do not wait to gather everything before getting advice.
A permanent residence refusal letter often arrives without the officer’s reasons, and the reasons can take a long time to obtain. We explain below how that is handled so the deadline is not missed.
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.
After a refusal: your options
A refusal letter usually says only that your application has been refused. It typically cites a section of the Act or a requirement you are said not to have met, but it does not explain how the officer reached the decision, what their specific concern was, or the reasoning behind it. Those reasons have to be requested separately.
One way to get them is an Access to Information and Privacy (ATIP) request for the officer’s notes (GCMS notes). ATIP requests commonly take at least 30 days, which can run past a 15 or 60 day deadline. You do not need the reasons to start a judicial review. The Notice of Application can be filed without them, and the Court then asks IRCC for the reasons. Lawyer to verify before publishing.
Once you understand the decision, there are generally these routes.
1. Request for reconsideration
You ask IRCC to look at its own decision again. There is no legal right to this, no set timeline, and the same office that refused the application decides the request. It tends to suit clear errors, such as an overlooked document or a procedural fairness problem.
2. Submit a new application
A new application lets you address the officer’s concerns and add missing evidence. The earlier refusal stays on your record, the reasons may be too general to show what went wrong, and a second refusal can make later applications harder. Permanent residence applications also carry processing times and fees that start again.
3. Appeal to the Immigration Appeal Division, where available
Some refusals, such as many family sponsorship refusals, can be appealed to the IAD instead of going to the Federal Court. See sponsorship appeals. Which route applies depends on the type of refusal.
4. Judicial review in the Federal Court
You ask the Court to review the decision. If the Court agrees it was unreasonable or unfair, the application goes back to IRCC to be decided again. The rest of this page explains how that works.
What judicial review is
Judicial review is not an appeal. The judge does not substitute their own decision for the officer’s and does not grant permanent residence. The question is whether the decision was reasonable and whether the process was fair. If you succeed, the application is generally returned to IRCC for redetermination by a different officer.
Situations where it may be worth considering
- A refusal based on incorrect facts or a misunderstanding of the evidence
- A refusal that ignores important evidence pointing the other way
- Reasons that are too thin to follow the officer’s chain of analysis
- A misreading or misapplication of an eligibility requirement or of the law
- An unreasonable assessment of a humanitarian and compassionate (H&C) request
- A genuineness, credibility or misrepresentation finding made without a fair chance to respond
These are only common examples. Other grounds exist, and a lawyer reviews the reasons and the original application before deciding whether any are worth raising.
- Express Entry and Provincial Nominee refusals
- Spousal and family class refusals where no appeal is available
- Humanitarian and compassionate refusals
- Caregiver and other economic class refusals
Who is involved
- The applicant is the person challenging the refusal, usually represented by a lawyer who prepares and argues the case.
- The Department of Justice (DOJ) represents the Minister and IRCC and defends the decision as reasonable and fair.
- The leave judge reviews the written materials and decides whether the case may go to a hearing.
- The hearing judge is a different judge who hears the full case if leave is granted and decides it.
The process, start to finish
The chart shows the typical path of a permanent residence refusal judicial review. Every case is different, and the notes below the chart explain each step.
IRCC sends a refusal letter, often without the officer’s reasons. The clock starts: 15 days if the application was made from inside Canada, 60 days if from outside Canada.
Filed with the Federal Court within the deadline. It names the decision and the legal grounds, and states whether you already have the officer’s reasons.
You have 30 days from filing to perfect the application by filing the Application Record.
The Court requests the reasons from IRCC (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 officer plus the written legal arguments explaining why the decision should be set aside.
The refusal is set aside and a different officer 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 IRCC for a new decision by a different officer. The Court does not issue the visa or permit.
Filing deadlines under the Federal Courts Citizenship, Immigration and Refugee Protection Rules, such as the 30, 30 and 10 day steps above, should be confirmed against your own file. Lawyer to verify before publishing.
Step-by-step detail
- Notice of ApplicationThe Notice sets out the decision you are challenging and the grounds. The Federal Court publishes a practice guide on how to file it.
- Application RecordIt contains the materials that were before the officer, affidavit evidence where appropriate, and the memorandum of argument. It has specific content and format requirements.
- Respondent’s MemorandumDOJ responds in writing. In most cases it defends the officer’s decision.
- ReplyA short, focused answer to new points raised by DOJ.
- LeaveDecided on paper. If leave is denied, there is generally nothing further in this case.
- Hearing and decisionThe judge may dismiss the case or set the decision aside. Decisions are rarely given the same day.
About settlement
Settlement usually means DOJ offers to set aside the refusal, send the application back to a different officer, and let you provide updated submissions, in return for discontinuing the court case. It is the same remedy the Court would typically give.
- Less frequent in permanent residence cases. In our experience, settlement is less common here than in temporary resident judicial reviews, so plan for the possibility that a judge decides the case.
- No obligation. DOJ decides, on its client’s instructions, whether to offer settlement.
- No guarantee. A strong case may be more likely to settle, but no one can promise it.
- Any time. It is often offered after the Application Record is filed and before DOJ responds, but it can come at any stage, including after leave.
- Standard terms. Requests for a promised outcome or a processing time are rarely accepted.
Tracking your Federal Court file
Public court files can be searched by surname or file number on the Federal Court’s website.
Weighing the decision
Judicial review has real advantages and real limits. Here are the points we usually go through with people.
Advantages
- If the refusal is set aside, it is no longer a decision a future officer can rely on.
- The new officer can see the court history, and a judge’s comments on the first decision can help you.
- You do not start from scratch. You can answer the specific concerns in an updated submission.
- The Court’s timelines are clear, and some cases are resolved by settlement before a hearing.
Limits
- The deadlines are strict, and the Court does not grant permanent residence. It only orders a new decision.
- Settlement is less common, so the case may go to a hearing, which can take many months and sometimes more than a year.
- After a successful review, the redetermination takes further time, and the file may wait for processing again.
- Lawyer fees and a Federal Court filing fee apply. The Court’s fee has been $50 per refusal challenged. Lawyer to verify before publishing.
- The new officer decides afresh and is not bound by the earlier findings. An issue not raised the first time can be raised on redetermination.
- The case may be refused again after a successful review.
We only recommend going ahead where the reasons show a real legal issue. If they do not, we tell you, and we sometimes discontinue a case once the officer’s reasons have been reviewed.
What happens after a successful review
The redetermination is where your result is decided, so the update matters. It may need new supporting documents, a personal statement and legal submissions that respond directly to the concerns in the first refusal. Any comments from the Court can be used in your favour.
How we help
We regularly represent clients in judicial reviews of permanent residence refusals. These cases are decided on the written record and under strict deadlines, so both the quality of the legal argument and how quickly we move matter. 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 officer’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 officer’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 refusal letter and the date you received it
- Your full application and supporting documents
- Any procedural fairness letters and your replies
- Any officer’s notes (GCMS) you already have
Questions
Does judicial review stop removal?
Not automatically. If removal is a concern, a separate stay motion may be needed.
What if I missed the deadline?
You can ask the Court for an extension, but you must explain the delay. Contact us right away.
Related
Judicial Review of Temporary Resident Refusals
Challenging a refused visitor visa, study permit or work permit in Federal Court.
Sponsorship Appeals
Appealing a refused family sponsorship to the Immigration Appeal Division.
Stay of Removal Motions
Urgent Federal Court motions to pause a scheduled removal from Canada.