The Federal Court Judicial Review Process: Step-by-Step Guide for Immigration Applicants
When an immigration application is refused and there is no right of appeal, the next possible legal step may be an application for judicial review at the Federal Court of Canada. This process allows the court to review how the decision was made, not whether it was a good or fair result. The focus is on legality, fairness, and reasonableness.
Before beginning, it’s important to assess whether the case has a solid legal foundation. Judicial review is not for simply disagreeing with a decision. It is used when there are serious legal concerns—such as procedural unfairness, failure to consider relevant evidence, or unreasonable findings not supported by the facts. As this is not an appeal, no new evidence can be introduced; rather, the Court must consider the application based on the material originally filed and considered by the officer or decision-maker.
If the case is viable, the judicial review process proceeds as follows:
1. File an Application for Leave and for Judicial Review
This is the official document that starts the process. It must be filed:
- Within 15 days for decisions made inside Canada
- Within 60 days for decisions made outside Canada (e.g., at a visa office)
This application tells the court that you intend to challenge the decision and asks for “leave,” which is the court’s permission to proceed.
2. Gather and Review Available Documents
Before the court decides whether to grant leave, the applicant must prepare their arguments based on:
- The refusal letter
- Any written reasons (such as GCMS notes or internal officer comments, if available)
- The submitted application and supporting documents
3. File the Applicant’s Record
Within 30 days of filing the application for leave (or after receiving the written reasons), the applicant must file their Applicant’s Record, which includes:
- An affidavit, usually from the applicant
- A Memorandum of Argument, laying out legal errors
- A list of legal authorities (case law, legislation, etc.)
This record forms the basis of the leave request.
4. The Minister’s Response
The Department of Justice may respond with a Notice of Appearance and file their own arguments against granting leave. Although filing a respondent’s record is optional, Department of Justice lawyers often file arguments opposing leave.
5. Applicant’s Reply
The applicant has an opportunity to respond to the Minister’s arguments in writing.
6. Leave Decision
The court reviews the written materials and determines whether leave should be granted. No oral hearing takes place at this stage. If leave is granted, the case moves forward to a full hearing. If leave is denied, the case ends.
Only if leave is granted does the Minister file the Certified Tribunal Record (CTR), which contains the full documentation from the immigration decision-maker.
7. Full Hearing
Once the CTR is available, a hearing is scheduled. This typically happens within a few months. At the hearing:
- The judge hears oral arguments from both sides
- No witnesses testify
- No new evidence is introduced
The judge focuses solely on whether the decision was made lawfully and reasonably based on the original record.
8. Decision
After the hearing, the judge may give a decision immediately (which is pretty rare) or issue a written ruling later. If the application is allowed, the judge sets aside the original decision and sends the matter back to be reconsidered by a different officer or tribunal member. The court does not substitute its own decision or grant status.
If the application is dismissed, the refusal remains in place.
Federal Court is a technical process that must be approached carefully. Missing a deadline or making weak legal arguments can result in dismissal. That’s why working with experienced professionals is essential.
At Elliott Immigration Corporation, we support clients through this complex process, working alongside skilled legal counsel to give applicants the best chance at success. If your immigration application has been refused, contact us today to find out whether judicial review is an option for you.
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