How do I apply for judicial review?
Question & AnswerHow do I apply for judicial review?
When you apply for a , you’re asking the Federal Court to review a decision because of a big legal or factual mistake in the decision. For example:
- the decision-maker didn’t understand or ignored the ,
- the decision-maker used the law wrong,
- the decision-maker did something that was not fair
- the process leading to the decision was not fair,
- there is proof that the translation at your 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, your case is sent back to the Board for a new hearing with a different decision-maker. The judge at your judicial review cannot make a new decision.
It is very important that you have a lawyer to represent you with your application for judicial review. This question gives you information about what your lawyer should do. It is not recommended that you 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 (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 other matters
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:
- 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, or
- You’re asking for a judicial review of a or .
The Federal Court can also review decisions made by:
- an Immigration officer about a (PRRA) or Humanitarian and compassionate (H&C) application, and
- a CBSA officer about requests to defer removal from Canada.
In these situations, there is no guarantee that you can stay in Canada while you wait for the Federal Court to make a decision.
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.