The most common reason people go to the Federal Court of Canada is for a Judicial Review of a negative decision. This is not an appeal as the court cannot substitute it’s decision for the decision of the decision maker. The role of the Federal Court in this context is to examine if there has been a error-in-fact or error-in-law in the decision that has been made. They review the process that led to the negative decision and evaluate if the decision maker made a fair and reasonable decision. If the Federal Court determines that the decision was not made fairly and reasonability, or that there is an error in law or fact in the decision, the Court will squash the decision and send it back for re-determination.
If the Court determines that no error was made, the original decision will stay. In the case of a removal order, you will be placed once again under a removal order and you will have thirty (30) days to leave Canada.
According to the Federal Court Art, the grounds for a judicial review (which are the same grounds for review of a decision of the Refugee Protection Division) are:
- the decision maker failed to observe a principle of natural justice or procedural fairness;
- the decision maker erred in law or fact when making their decision;
- the decision maker acted without, beyond or refused to exercise its jurisdiction; and
- the decision maker acted in a way that was contrary to the law.
There are two stages under the Judicial Review process:
APPLY FOR LEAVE
Applying for leave is asking for permission to have your matter hear by the Court at an oral hearing. If leave is denied, the application is denied and does not proceed further. If granted, an application for judicial review can be submitted. Together, this application is known as an application for leave and judicial review.
This application needs to be commenced within fifteen (15) days after the person proceeding with this application is notified of the refusal.
APPLICATION FOR JUDICIAL REVIEW
Once leave is granted, one can proceed with an application for Judicial Review. This means the court will examine the decision in depth. They will be given an opportunity to attend a oral hearing before the Court in order to explain why the original decision made was incorrect.
In case of a decision made bu the IRB, a request to review the decision will automatically stay your removal order (placed your removal on hold). You will be able to stay in Canada until a decision is made by the Court.
Please contact Subuhi Siddiqui Immigration Law Firm for your immigration, citizenship or status matter. To set up a consultation, give us a call at (647) 454-9364 or e-mail us at firstname.lastname@example.org.