What Is The Difference Between An Appeal And A Judicial Review?
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What is the difference between a Canadian Immigration Judicial Review & an Appeal?
In immigration law, the term Appeal is often used to describe both the “Appeal” and the “Judicial Review” process. However, these are two separate legal proceedings.
Appeal to the Immigration Appeal Division
An Appeal is a particular procedure initiated by the Immigration Appeal Division following individual refusals which allow for a full review of the decision and the decision-making process. The Immigration Appeal Division is one of three divisions of the Immigration and Refugee Board, Canada’s largest independent administrative tribunal.
Once you have filed an Appeal at the Immigration Appeal Division, you will wait to receive a hearing date.
An Appeal to the Immigration Appeal Division is proceeded by a Board Member (or Panel Member) which will review the decision of the immigration officer, visa officer or CBSA officer along with the updated documentation submitted by the parties. As the Immigration Appeal Division considers new evidence, this type of Appeal is called de novo. A Board Member will not, for example, grant or issue a Visa in an overseas case. Should the Board Member “allow” the appeal in such a case, the matter will be sent back to the visa post abroad for continued processing in line with the reasons for the request.
The following application/cases may be appealed to the Immigration Appeal Division:
At an Appeal, individuals may testify in person, through sworn statements as well as by phone conference. Parties may also submit documentation (called disclosure) before the hearing in support of the case.
If an Appeal is dismissed, you have 15 days from the date that you received the refusal to file an Application for Leave and for Judicial Review at the Federal Court of Canada to have the decision reviewed.
Judicial Review at the Federal Court of Canada
The Federal Court is Canada’s national court which hears and decides legal disputes arising in the federal domain. Immigration matters are dealt with as Applications for Judicial Review, which is narrower in scope than a full appeal. The Federal Court will only overturn in limited circumstances.
There is a 2 step process to have your matter heard at the Federal Court.
1. You must first file an Application for Leave and Judicial Review – this means that you are requesting permission to a Federal Court Judge to have your matter reviewed within a Judicial Review proceeding;
2. Should this permission be given (called “leave granted”), the Federal Court will then schedule a date for the Judicial Review hearing.
Just like the Immigration Appeal Division, a Federal Court Judge will not grant, issue or approve a Visa or application. The Federal Court will determine whether the decision of an immigration officer or a Board Member violated proper procedure or was reasonable or unreasonable. If the decision is determined to be unreasonable, the matter will be sent back for re-determination by a different officer or Board Member.
Any decision by a federal decision-maker can be judicially reviewed unless there is a first right of appeal. The following refusals can be directly judicially reviewed by the Federal Court of Canada:
Federal Skilled Worker
Canadian Experience Class
Provincial Nominee Program
Temporary Resident Visa
Humanitarian and Compassionate
Pre-Removal Risk Assessment
Request for Deferral
Spousal Sponsorship Appeal
Family Class Sponsorship Appeal
Residency Obligation Appeal
Removal Order Appeal
Refugee Claim or Claim for Protection
During a Federal Court Judicial Review hearing, the individual involved in the matter may not testify. The Federal Court will only rely on documentation available to the immigration officer or to the Board Member at the time the decision was made. Your immigration lawyer will submit argumentation and case law and the opposing party, the lawyer representing Citizenship and Immigration Canada, will do the same. The lawyers will argue the case in person before a Federal Court Judge who will make the final decision.
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