Judicial Reviewsand Appeals
Judicial Reviews
Judicial review is available for many different types of decisions, for example judicial review can be sought from a:
- refusal of refugee status;
- refusal of a visa;
- refusal of an application for permanent residence;
- determination of inadmissibility; and
- refusal to re-open a case.
The lawyers at Landings LLP regularly appear before the Federal Court in cases that are both important to our clients and develop the law. For example, our lawyers have been counsel in:
- Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship), 2020 FC 770, which struck the Safe Third Country Agreement between Canada and the United States for violating security of the person under section 7 of the Charter of Rights and Freedom
- Hassouna v. Canada (Citizenship and Immigration), 2017 FC 473, which struck provisions of the Citizenship Act as violating the procedural guarantees required under section 2 of the Canadian Bill of Rights
- Canadian Doctors for Refugee Care v. Canada (Attorney general), 2014 FC 651, which struck a law that denied health care to refugees for being “cruel and unusual” and violating equality guarantees under sec ons 12 and 15 of the Charter of Rights and Freedom
If you receive a negative immigration, refugee or citizenship decision, you may be able to have that decision reviewed by a judge at the Federal Court of Canada.
A judicial review is similar to an appeal of a decision. The judge reviewing your case will look at the decision that has been made and decide if it is a reasonable decision or not. After reviewing your case, the judge may set aside the refusal if the decision was made in error, if it was procedurally unfair, or if the decision-maker failed to properly exercise their decision-making power. The judge may also strike down a law that is unconstitutional.
Having your case reviewed by the Federal Court is a two-step process. First, a judge must agree that it is appropriate for the Federal Court to hear your case. This is called “granting leave”. If leave is granted, you will be given an opportunity to have a hearing where your lawyer makes arguments in support of your position that the decision you received should be set aside. There are strict time limits for when an application for judicial review can be made.
Appeals
In some cases, a decision of the Federal Court or the Ontario Superior Court may be appealed to either the Federal Court of Appeal of Canada or the Ontario Court of Appeal. Most immigration cases are decided in Federal Court and therefore are appealed to the Federal Court of Appeal.
Our lawyers have repeatedly appeared before the Federal Court of Appeal and have appeared at the Ontario Court of Appeal in cases including:
- Peer v. Canada (Citizenship and Immigration), 2011 FCA 91
- Canada (Citizenship and Immigration) v. Young, 2016 FCA 183
- Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118
- A.M.R.I. v. K.E.R., 2011 ONCA 417
The Federal Court of Appeal restricts which immigration cases it will hear. Section 74 (d) of Immigration and Refugee Protection Act and s. 22.2 (d) of the Citizenship Act provide that an appeal to the Federal Court of Appeal may only be made if the Federal Court judge who reviewed a decision certifies a serious question of general importance. A “certified question” means that the Federal Court judge who made the decision, has decided that there is something that was central to the decision that he or she made that could be important to other legal cases as well.
If you would like to find out more information you can set up a consultation by clicking here
Judgements made by the Federal Court of Appeal can be appealed to the Supreme Court of Canada. The Supreme Court may agree to hear the case (or “grant leave”) when the case raises an issue of public importance. Our appeals lawyers frequently appear at the Supreme Court of Canada, on behalf of individuals and organizations. Our work at the Supreme Court of Canada includes:
- Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 SCR 289
- Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37
- Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40
- Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36
- Canada (Attorney General) v. Mavi, 2011 SCC 30
- Gavrila v. Canada (Justice), 2010 SCC 5
- Canada (Prime Minister) v. Khadr, 2010 SCC 3
If you would like to find out more information about appealing to the Supreme Court of Canada, please book a consultation.
The Immigration and Refugee Protection Act permits some decisions of visa officers or the Immigration Division to be appealed to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board. Cases that you might be able to appeal to the Immigration Appeal Division include:
- the refusal of a family sponsorship,
- a finding of inadmissibility that has led to a removal order (a deportation order or an exclusion order),
- or the loss of permanent residence for failing to meet the residency requirement.
The Immigration Appeal Division (IAD) has the ability to consider humanitarian and compassionate factors when making a decision. These include a person’s establishment in Canada, the hardships they will face as a result of having to leave Canada and the best interests of any children directly affected by the person’s removal from Canada.
If you would like to discuss an appeal to the Immigration Appeal Division (IAD), please contact us for a consultation.
The Refugee Appeal Division (RAD) considers appeals of decisions from the Refugee Protection Division of the Immigration and Refugee Board. The Refugee Appeal Division can allow or reject claims for refugee protection. The RAD will look at whether or not the member who refused your claim for refugee protection made a mistake.
In some cases, the RAD will consider whether there is new evidence which shows that a person should be granted protection in Canada because they are not safe in their home country. Your case may be decided based on written submissions only, or after an oral hearing.
If you would like to speak with an immigration appeal lawyer regarding refugee appeals, representation at the Federal Court of Appeal, the Immigration Appeal Division (IAD) or the Refugee Appeals Division (RAD), you can set up a consultation by clicking here.
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