The immigration process in Canada involves a number of moving parts, including the Immigration and Refugee Protection Act, regulations and policy, and stakeholders like lawyers and consultants, IRCC and CBSA officers, and the Federal Court of Canada. Decisions made by front line decision makers (IRCC and CBSA Officers and tribunals) can be challenged through judicial review (and sometimes before the IRB), but the Federal Court's role is limited to determining if the decision is reasonable and if there is a reviewable error. It cannot substitute a different decision and is confined to the record below and cannot usually consider new evidence. Therefore, it is important for an immigration practitioner to provide the best possible application at the outset to ensure the best outcome and avoid refusal.
Immigrating to another country can be complex. The applicant likely has to navigate policy, procedure and legal requirements. This is true even of relatively straightforward applications, such as visitor visas or applications to reunite with family members. The system is complex and is made up of a number of moving parts and stakeholders. The immigration system includes:
- The jurisprudence (the law --the Immigration and Refugee Protection Act or Citizenship Act);
- Regulations and policy (the Immigration and Refugee Protection Regulations, the Manuals, Operational Bulletins, the IRCC website, etc.);
- Lawyers and registered/regulated consultants;
- IRCC Officers;
- CBSA Officers; and
- The Federal Court of Canada
I wanted to discuss the Federal Court in this post. Many clients are not aware of the role of the Federal Court. Some lawyers and consultants may not realize the limits of that role. The fact of the matter is that there are tens of thousands if not more decisions made by front line decision makers (IRCC and CBSA Officers and the tribunals that make up the Immigration and Refugee Board) every year. Some decisions can be challenged. However, the jurisprudence establishes significant deference and respect for the decisions of the various tribunals of the IRB and the decisions of Officers both inside and outside Canada. You can seek judicial review for most of the decisions of the Immigration Division; all of the decisions made by the IAD; and the decisions of Officers made inside and outside Canada (other than those that fall within the jurisdiction of the ID/IAD).
The Court may also be the last stop before the execution of a Removal Order; the Court can impose a stay if an Applicant establishes that they meet the tripartite test.
But judicial review is not a substantive appeal on the merits. The Court cannot substitute a different decision than the original decision maker (except in vary rare circumstances). The Court is primarily concerned with whether the decision is “reasonable” and whether there exists a reviewable error. As one example, an applicant may well succeed in judicial review of a refused visitor or study visa but the matter is returned for redetermination by a different decision maker that could also refuse the application.
The Court is confined to the record below and cannot usually consider new evidence.
Given the limits of judicial review it is imperative that an immigration practitioner puts the absolute best foot/best possible application forward.