Judicial Review Canada
What Is A Judicial Review?
Judicial review is a process for courts in Canada to ensure that decisions of administrative bodies are fair, reasonable, and lawful. When you make an application for judicial review, you ask a three-judge panel of the Divisional Court to look at a decision one of the administrative bodies have made. If a matter is urgent, superior courts can also get involved, as you can also make an application for judicial review to a single judge of the Superior Court.
The judicial review process is not in place to re-argue a given case. Instead, the process is undertaken to show that an administrative decision maker did not exercise decision-making powers properly and thus made an error that requires the Court to take action. This assessment can allow the Divisional Court panel to change or set aside the decision the administrative body made.
All judicial review applications should address the standard of review. One of two standards of review typically apply: either the reasonableness standard or the correctness standard. If the application involves procedural fairness, no analysis of the standard of review is needed.
The reasonableness standard is the deferential standard. This standard maintains that the decision can fall within a range of certain possible and acceptable outcomes. Even if judges assessing an application would make a different decision themselves, they will not interfere with a decision that they deem to be reasonable. Thus, an individual applying for judicial review under this standard must persuade the court that a decision was unreasonable to be successful in their appeal.
Although reasonableness creates the default standard, in some limited circumstances, the correctness standard may instead apply. In these cases, the court does not defer to the administrative decision-maker’s decision but instead comes to its own decision about the correct result. This standard only applies to specific questions:
- Constitutional questions.
- Questions of central importance to the justice system, because they have implications for the rule of law across the system.
- Questions that concern jurisdictional lines.
Applications for judicial review may also challenge the procedural fairness in the decision-maker’s process or hearing. In these cases, the Court will assess the level of procedural fairness needed in the specific circumstances.
What Kind of Decisions Can Be Reviewed?
Any decision maker who has authority and power because of statute is subject in Canada to judicial review. For example, administrative tribunals or members of the government who make decisions regarding a person or party’s legal rights or eligibility to receive benefits or licenses can have their decisions reviewed by the Divisional Court. There does not need to be legislation specifically granting the right to judicial review for it to apply to administrative tribunals or official decision-makers.
When an agency or local law enforcement entity makes a legal decision, a judicial review can then occur to challenge the decision. Judicial review cases that can take place in the Federal Court include:
- Refused applications for permanent residency.
- Refused Canada Experience Class or Federal Skilled Worker Program applications for permanent residence.
- Refused study permits.
- Refused visitor visas.
- Refused work permits.
- Certain spousal cases.
The Federal Court often acts as the last resort for cases refused by officers or tribunals (such as the Immigration Refugee Board). The Federal Court reviews the case to determine:
- Whether the original decision was made lawfully.
- Whether the ruling party acted within its jurisdiction.
The Court can then decide the original case should get another look, authorizing a different decision-maker to review the case.
When to Apply for Judicial Review
If you are looking to bring a matter for the courts to review, you will want to keep a certain timeframe in mind. Though no specific time limitation exists to file an application for judicial review, the Court can decide to dismiss an application if they believe an undue delay has occurred before bringing the application. As a result, you will generally want to make an application for judicial review within 30 days of the date of the decision that needs to be reviewed.
Additionally, the Court can choose to decline hearing an application for judicial review before certain processes are complete. For example, if there is a right to appeal or to request reconsideration of a decision made by an original decision-maker, the Court may want to wait to hear an application until that process is concluded. In these cases, you will generally need to wait until final decisions are made and decisions are determinative of the case before moving into the judicial review process.
Refusals For The Federal Skilled Worker Program
The Federal Skilled Worker Program is in place to permit Canadian immigration for anyone who is admitted to the country permanently because of their work experience. These individuals are also applying for a permanent resident visa and, sometimes, they go through a quicker process if they already have arranged employment in Canada. In either case, an official application is required. For your application to be approved, you must meet certain requirements and submit a complete application. Otherwise, the application can be denied or delayed as the immigration department requests additional information.
To avoid a refused case, you should include all requirements and supplemental documentation with your original application, which may include medical records, employment letters, proof of English or French language proficiency, and educational credentials/requirements. It’s also important to be able to show that you can support yourself and any family members who will immigrate to Canada with you. Lastly, based on everything submitted, applicants will be assigned points, the total of which must exceed 67 points.
How Do We Help?
Judicial review cases can be complicated, and working with experienced lawyers can help give your application the best chances for success. The lawyers at Chaudhary Immigration Law can give your application the personalized attention it deserves. Contact us today to begin the judicial review process with experienced lawyers by your side.
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