How do I apply for judicial review?

When you apply for a judicial review, you're asking the Federal Court to review a decision because of a big legal or factual mistake in the decision. It can be a decision that was made at your hearing, or a decision on a written application you made.

Decisions can have different mistakes. For example, the decision-maker:

• didn't understand or ignored the evidence,
• used the law wrong, or
• did something that was not fair.

You can also apply for judicial review if:

• the process leading to the decision was not fair,
• there is proof that the interpretation at a hearing was not accurate, or
• the decision was based on documents that were not shared with you or your legal representative.

If your application for judicial review is successful, the judge doesn't make a new decision on your case. Instead, the judge will send your case to a different decision-maker. What happens with your case will depend on the type of decision that is judicially reviewed. For example, if you are a refugee claimant, you will get a new hearing at the Refugee Board. If you asked the court to review a negative H & C decision, another officer will consider the written application you made. You'll be able to update your evidence before a new decision is made.

It's very important to have a lawyer help with your application for judicial review. It's not a good idea to try to do this on your own.

Decisions that can be judicially reviewed

The Federal Court can review decisions made by the 4 divisions of the Immigration and Refugee Board (IRB):

• Refugee Protection Division (RPD) decisions about refugee claimants who are not eligible to appeal and decisions to cease or vacate protected status
• Refugee Appeal Division (RAD) decisions about appeals
• Immigration Division (ID) decisions at detention reviews or admissibility hearings
• Immigration Appeal Division (IAD) decisions about appeals from removal orders, sponsorship refusals, and residency obligations for permanent residents

If you're asking for a judicial review in any of these situations, you're usually allowed to stay in Canada until the Federal Court makes a decision. But there is no automatic right to stay in Canada if:

• you're asking for a judicial review of a cessation order or vacation order, or
• the Refugee Board decided that your claim has “no credible basis” or is “manifestly unfounded.” This means that there was not enough evidence to support your claim or the Board Member didn't believe your evidence.

The Federal Court can also review decisions made by:

• Immigration officers about
  • a Pre-Removal Risk Assessment (PRRA)
  • inland spousal sponsorship
  • Humanitarian and compassionate (H&C) application
• CBSA officers about
  • your admissibility
  • a request to defer your removal from Canada

In these situations, you also have no right to stay in Canada while you wait for the Federal Court to make a decision.

Time limits

You must file a Notice of application at the Federal Court asking for leave and judicial review within 15 days of receiving your written negative decision.

You then have another 30 days to “perfect” your application. This means that you file an Application Record with your supporting documents and legal arguments.

The Federal Court reviews your application to decide whether it should have an oral hearing. This is called “leave”. Leave is only given in cases where the court decides that the decision contains big legal or factual errors.

Get legal help

The judicial review process is very complicated. It's important to try to get legal help from a lawyer with experience in Federal Court applications.