Judicial Review or appeal in Immigration Law
In Canada, a vast number of government bodies and agencies provide a wide range of services to Canadians. Parliament, through laws grant decision making powers to the executive branch of the government such as ministries, governmental agencies and bodies. Hence, all administrative bodies derive their powers and jurisdiction from their governing statutes. In the immigration context, Citizenship and Immigration Canada along with Canada’s Border Service Agency derive their power from the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations.
Judicial review is the process by which the courts oversee administrative decision-makers to ensure that their decisions are legal and are within their jurisdiction. The courts may review and grant relief regarding an administrative decision where the decision-maker exceeded the powers conferred by law or breached the principles of procedural fairness.
What’s the difference with an appeal?
It is fundamental for applicants to understand the difference between judicial review and an appeal. When a decision is subject to an appeal, the appellate body has the power to replace the earlier decision with its own decision.
However, a judicial review does not grant the Courts the power to replace the decision with their own decision. If the Court agrees that errors were made and a judicial review is warranted, it will grant the judicial review and send the file back to be heard by a new officer or Board Member. A victory by an applicant on judicial review allows that person to have his case heard again.
Appeals in the immigration context
Appeals are governed by Division 7: Right to Appeal (sections 62 to 71) of the Immigration and Refugee Protection Act. The Immigration Appeal Division is the body that hears appeals related to immigration matters. The Act states the situations where there is a right to appeal (section 63 of the Act) and situations where there are no rights to an appeal (section 64 of the Act).
There is a right to appeal for visa refusals of a member of the family class (spouse, mother, father, grandparents, children related to the sponsor, his parent’s or grandparent’s under the age of 18 see regulation 117(1) of the Immigration and Refugee Protection Regulations for specifics). There is also a right of appeal for against removal orders made against a foreign national who holds a permanent resident visa. A permanent resident or a protected person can appeal their removal order. Finally a permanent resident may appeal against a decision made outside of Canada on the residency obligation under section 28 of the Act.
The situations where there is no right to appeal are when a foreign nationals has been found inadmissible on grounds of security, violating human or international rights, serious criminality or organised criminality. Serious criminality is any crime that has a term of imprisonment of at least 2 years or more. Finally there is no right to appeal if there was a decision based on a finding of inadmissibility on the ground of misrepresentation except for persons sponsoring a spouse or common law partner.
An appeal is allowed if the Immigration Appeal Division is satisfied that the decision appealed is wrong in law or fact or mixed law and fact, a principle of natural justice has not been observed and taking into account the best interests of the child directly affected by the decision sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case see section 65 of the Act for when humanitarian and compassionate considerations may be considered and when not.
Judicial Review in the Immigration context
Judicial Reviews are governed by Division 8: judicial Review (section 72 to 75) of the Immigration and Refugee protection Act. Judicial Review is made by the Federal Court by seeking leave (authorization) to the Court. To be able to make an application for leave (authorization) all rights of appeal must have been exhausted and the applicant must file a notice 15 days if in Canada and 60 days if outside of Canada from the date the applicant is notified or made aware of the decision he or she wishes to review. As we have seen judicial review does not allow the Federal Court to render a decision it can only send back the case to the proper authorities to decide the case again where the decision-maker exceeded the powers conferred by law or breached the principles of procedural fairness.
We have briefly seen the distinction between an appeal and judicial review. If you need help navigating the complicated waters of appeals and judicial review in the immigration law context contact the Toronto immigration lawyers at Chaudhary Law Office for a consultation.