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 issue a visa or permit. The question is whether the officer’s decision was reasonable and whether the process was fair. If you succeed, the application is sent back for redetermination, usually 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 decision that does not follow the law or IRCC policy
- A credibility or genuineness finding made without a fair chance to respond
These are only the common examples. Other grounds exist, and a lawyer reviews the notes and the original application before deciding whether any are worth raising.
Here are the typical temporary resident refusals we handle:
- Visitor visa and super visa refusals
- Study permit and extension refusals
- Work permit refusals, including employer-specific and open permits
- Temporary resident permit (TRP) refusals
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 refusal, usually represented by a lawyer who prepares and argues the case.
- The Department of Justice (DOJ) represents the Minister and IRCC. Its role is typically to defend the officer’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 visa refusal judicial review. Every case is different, and the notes below the chart explain each step.
IRCC sends a refusal letter. The clock starts: 15 days for applications arising from inside Canada, 60 days for applications arising 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, apply in most cases.
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.
- No obligation. DOJ decides, on its client’s instructions, whether to offer settlement. It typically turns on their assessment of the strength of your judicial review and whether you can show a strong case. Neither you nor your lawyer can oblige them.
- No guarantee. Stronger cases 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
- You do not start from scratch. If the judicial review is granted, your full application still stands with all of the existing evidence. You can address the specific concerns in an updated submission.
- The Court’s timelines are clear, and an early settlement can mean a new decision in a few months.
- If the refusal is set aside, it is no longer a decision a future officer can rely on, and a judge’s comments on the first decision can help you.
Limits
- The deadlines are strict, and the Court does not grant the visa. It only orders a new decision.
- A case that goes to a hearing can take many months, sometimes more than a year.
- 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 notes 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. Your lawyer can also use the Court’s comments, if there are any, in your favour.
How we help
We regularly represent clients in judicial reviews of temporary resident 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
- A copy of everything you submitted
- Any officer’s notes (GCMS) you already have
- Any earlier refusals or procedural fairness letters
Questions
How much are the fees?
You can get an approximate fee for the judicial review process through our online consultation portal, before your appointment.
Can you tell me what my chances are?
Yes and no. We can tell you whether you have a strong, weak or “so-so” case, but that is based only on our legal assessment. We cannot give you “chances”, because we do not control the full process, including DOJ’s assessment or how the Court may rule.
Will a judicial review hurt my immigration record?
No. There is no prejudice to an applicant for challenging an IRCC decision, and it cannot be held against you in future visa or permanent residence applications.
We were refused as a family. Do we each need to file a judicial review?
The Federal Court allows families to consolidate their matters into one. Whether that suits your case is something we determine in a consultation.
Can I add more documents during the judicial review?
Typically, no. The Court only looks at the material that was before the officer, and we are bound by that record, though there are exceptions.
Can I just reapply instead?
Often yes. Reapplying and seeking judicial review are different routes, and we can help you weigh them. The judicial review deadline keeps running while you decide, so ask early.
Will the Court give me the visa?
No. If successful, the Court usually orders a new decision by a different officer, which may still be a refusal.
