A judicial review of a decision made under Immigration and Refugee Protection Act involves a two stage process. At the first stage, known as the “permission / leave stage” an application for leave and judicial review undergoes a paper review. At the “permission / leave stage” the applicant must persuade the Court that the application raises a serious issue involving an error in law, a serious error in fact, a violation of natural justice or an excess of jurisdiction by the decision maker. This is a low threshold. A serious issue is demonstrated if the judge reviewing the application believes that the applicant has raised an arguable issue that can only be resolved by a full hearing of the judicial review application.
Once the application for leave and judicial review is filed, the applicant has thirty days in which to file an Application Record which includes the applicant’s affidavits and a written memorandum of argument. The respondent Minister of Citizenship and Immigration must file its responding material within thirty days after receiving the Application Record. The applicant may file a memorandum in reply within ten days of receiving the respondent’s materials. This is the final document exchanged between the parties before the determination of the ”permission / leave stage” of the application.
If leave for judicial review is denied, the application is dismissed and proceeds no further because there is no right to appeal from this decision. If leave is granted, the proceedings move to the second stage, the application for judicial review.
A judicial review application is different from an appeal. On an appeal, the judge decides the issues based on what the judge determined to be the correct answer when the law is applied to the facts of the case. Appeals are therefore concerned with getting the right decision.
Judicial review addresses the manner or the process in which the decision is made. For example, a judge may disagree with an officer’s decision, but if the judge is satisfied that the officer proceeded fairly, understood the facts of the case and acted within the authority of the Immigration and Refugee Protection Act, the judge may dismiss the application for judicial review.
In simplified terms, the main reasons for allowing an application for judicial review are:
- the decision make an error in law, whether the error is obvious or not;
- the decision maker got the facts wrong at a fundamental level, or appears to have ignored a fact of fundamental importance;
- the decision maker violated a principal of natural justice or failed to observe procedural fairness;
- the decision maker’s decision goes beyond the authority conferred upon him/her by the Immigration and Refugee Protection Act and its Regulations.
Accordingly, when the judicial review application is granted, the judge does not make the decision which, in the Court’s opinion should have been made. The initial application is remitted for re-determination by a different visa officer. The parties proceed as if the earlier decision had never been made. This means that the officer making the re-determination starts afresh and may consider any facts arising, since the earlier decision was taken.