Judicial Review of an IRCC Refusal

IRCC refused you. You read the reasons and they do not match the application you actually submitted. The officer says you did not show ties to your home country, when you sent employment letters, property documents and family records. Or the refusal repeats the same three template lines that every other refused applicant receives.

That is not a case for reapplying and hoping for a better officer. That may be a case for the Federal Court of Canada.

Judicial review is the process that holds IRCC accountable, and it is heard by the Federal Court of Canada. It does not ask the Court to re-decide your application. It asks the Court to look at how the officer decided it, and to set the decision aside if the officer ignored your evidence, misread the facts, gave reasons that do not hold together, or never gave you a fair chance to respond.

At SAAB Immigration we handle refused files every week. We know what a defensible refusal looks like and we know what a reviewable one looks like. The difference decides whether you should be in Federal Court or in a stronger reapplication, and we will tell you which one you have before you commit to anything.

Judicial review is filed and argued at the Federal Court of Canada by a lawyer licensed by a Canadian provincial or territorial law society, or by a notary in Quebec. That is set by section 91 of the Immigration and Refugee Protection Act, and it applies to every immigration matter that reaches the Court.

This is where most people who were refused hit a wall. The consultant who prepared their application cannot take it further, so they are sent out to an unfamiliar litigation firm that has never seen the file, does not know what was submitted, and starts the analysis from zero. Momentum is lost at exactly the moment a 15 day deadline is running.

That does not happen here.

SAAB Immigration has a working relationship with Dr. Pallavi Kataria of Pallavi Law Office. Dr. Pallavi Kataria, Barrister and Solicitor, Pallavi Law Office, files and argues judicial review applications at the Federal Court. Dikshit Soni, RCIC (R536007), performs the case assessment, obtains and analyzes the GCMS notes, and prepares the file that counsel takes forward.

You are not handed off. Your file stays in one office, with one team, from the refusal through to the Court and back again if the matter is returned to IRCC for redetermination.

Judicial review deadlines are short and they are strict. They run from the day the decision reached you, not the day you understood it and not the day you started looking for help.

Refusals issued by visa offices abroad, which covers most visitor visa, study permit and work permit refusals, fall under the 60 day rule. In-Canada decisions such as extensions, restorations and in-Canada spousal applications fall under the 15 day rule.

If your deadline has already passed, the Court can grant an extension of time, but you have to earn it. You must explain the delay, show that you always intended to challenge the decision, and show that the underlying case has merit. Do not count on it.

The Court does not ask whether it would have approved your application. It asks whether this officer, on this record, made a decision that a reasonable officer could make, through a fair process.

These are the errors that succeed:

• The officer ignored evidence you submitted
  you proved funds, ties, or a genuine relationship, and the reasons show the officer never engaged with any of it.
• The reasons do not hold together
  template refusal language that never explains why your specific application failed, or findings that contradict each other.
• The officer got a fact wrong
  misread a document, misstated your work history, or relied on something demonstrably incorrect.
• You were never given a chance to answer
  the officer had concerns about credibility or document authenticity and refused without a procedural fairness letter or an interview.
• The officer applied the wrong test
  or applied a policy mechanically instead of assessing your actual circumstances.

These are the arguments that fail: disagreeing with the result, wanting to file better documents, or believing another officer would have said yes. Those point to a reapplication, not to Court.

Immigration judicial review has two stages, and you have to clear the first to reach the second.

Stage one, the application for leave. We file the application, which immediately preserves your deadline. IRCC then produces the officer’s reasons and the GCMS notes. Counsel files the written argument, the Minister responds, and a judge decides on the papers whether your case may proceed. There is no hearing at this stage, and if leave is refused no reasons are given. Most applications end here, which is precisely why the assessment before filing matters so much.

Stage two, the hearing. If leave is granted, the Court sets a hearing date. The hearing itself usually runs one to two hours. Counsel argues your case, the Minister’s counsel responds, and the judge often reserves and releases written reasons afterwards.

There is generally no appeal from a Federal Court judicial review decision unless the judge certifies a question of general importance. In practical terms, this is one opportunity, argued once, on the strength of the written record. It is worth preparing properly.

If you succeed, the Court sets the refusal aside and sends your application back to IRCC to be decided again by a different officer. The Court does not issue your visa and does not order IRCC to approve you.

That still matters enormously. A fresh officer reconsiders your file with the Court’s reasons in front of them, and where the refusal was set aside because your evidence was ignored, that evidence now has to be addressed. Many redeterminations are approved. What you have won is a decision made properly, which is what you should have received the first time.

We turn people away from judicial review regularly, because it is often not the fastest or strongest route to what you actually want.

• If the refusal was justified, reapply
  thin proof of funds, a vague study plan, missing documents. Fix the application properly and file again. A strong reapplication decided in weeks beats litigation decided in a year.
• If IRCC made an administrative error, request reconsideration
  a document that never made it onto the file, or something clearly in the record that the officer missed. That route is faster and simpler.
• If you have appeal rights, use them
  family sponsorship refusals, residency obligation decisions and removal orders generally go to the Immigration Appeal Division, where new evidence is allowed and the Division can substitute its own decision.

We set out how these compare on our immigration refusals and appeals page.

We read the real reasons, not the refusal letter. The letter is a template with boxes ticked. The GCMS notes contain the officer’s actual reasoning, and that is where a reviewable error becomes visible. If you do not have your notes, we request them. Where your deadline is tight, we file first to protect it and analyze in parallel.

We assess whether there is an error the Court can act on. A refusal you disagree with and a refusal that is legally defective are two very different things. You will be told plainly which one you are holding.

Counsel takes it to Court. Dr. Pallavi Kataria files and argues the application. Nobody has to be brought up to speed, because we have worked these files together for years.

For a worked example, read how we took an Express Entry refusal to the Federal Court and had the decision set aside. Our other case studies include a 16 year old spousal sponsorship refusal we overturned and a PGWP restoration granted after loss of status.

If there is no case, we say so. And then we build you the strongest reapplication we can, which is frequently the better outcome anyway.

Most refused applicants do not need judicial review. The ones who do are usually the ones who did not realize their deadline was 15 days.

Send us your refusal letter and your GCMS notes. We will tell you whether the officer made an error the Federal Court can act on, and if they did, Dr. Pallavi Kataria takes it forward and we stay on the file alongside her.

• Immigration Appeals
• Responding to a Procedural Fairness Letter
• Immigration Refusals and Appeals
• Removal Orders and Stays of Removal