Judicial Review (Immigration) Practice Guide
PDF Version
IMMIGRATION AND REFUGEE PROCEEDINGS
IN THE FEDERAL COURT AND
THE FEDERAL COURT OF APPEAL
This booklet is prepared under the direction of the Acting Chief Administrator of the Courts Administration Service for the information of those who seek judicial review or appeal of immigration and refugee matters in the Federal Court and the Federal Court of Appeal . It does not reflect the views of the Courts or of its judges. It is a guide to procedures, but it does not provide legal advice on how a person should proceed. For such advice, a person should obtain legal counsel. Questions on procedure may be directed to the Registries of the Federal Court or the Federal Court of Appeal.
May 2006
* Use of masculine incorporate the feminine.
INTRODUCTION
This booklet is prepared for the information of litigants in immigration and refugee matters coming before the Federal Court and the Federal Court of Appeal. It is based upon the Immigration and Refugee Protection Act [S.C. 2001, Chapter 27],1 and upon the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22, as amended by SOR/98-235; SOR/2002-232 and SOR/2005-339. However, as with any matter before the Courts, parts of the Federal Courts Rules [SOR/98-106, as amended by SOR/2002-417; SOR/2004-283; SOR/2005-340] may apply.
The general steps to be taken in seeking judicial review of immigration and refugee matters and the time limits involved are paraphrased. Readers are advised also to consult the original text of the Immigration and Refugee Protection Act, the Federal Courts Immigration and Refugee Protection Rules, as amended, and the Federal Courts Rules, as amended.
In this guide, references to the Act are to the Immigration and Refugee Protection Act, and the Rules are the Federal Courts Immigration and Refugee Protection Rules, as amended, unless otherwise indicated.
1 Bill C-11 of the First Session of the Thirty-seventh Parliament in force June 28, 2002.
LEAVE APPLICATIONS
Judicial review matters must be dealt with originally in the Federal Court.
All applications for judicial review of immigration and refugee matters require leave of a judge of the Federal Court [section 72 of the Immigration and Refugee Protection Act].
The application for leave to seek judicial review must be filed and a certified copy served on the respondent by the applicant within 15 days of notification of the decision or order for a matter arising in Canada, or within 60 days for a matter arising outside Canada [paragraph 72(2)(b) and Rules 4(2) and 7(1)]. Proof of service on the other parties must be filed within 10 days of service [Rule 7(2)]. For proof of service in the Federal Court and Federal Court of Appeal in general, refer to Federal Courts Rule 146.
Form of Application
An applicant should follow Form IR-1 in the Schedule to the Rules, entitled Application for Leave and for Judicial Review, of this booklet, and should include:
- full names of the parties;
- date and details of the matter in which relief is sought and the date of notification;
- name of the tribunal and names of members if more than one person;
- tribunal's file number, if any;
- precise relief to be sought;
- grounds for relief sought, including reference to any statutory provision or rule to be relied on;
- proposed place and language of hearing of the application for judicial review;
- whether the applicant has received the written reasons of the tribunal; and
- the signature, name, address and telephone number of the individual solicitor filing the application, or of the applicant who is acting in person.
[This information is contained in Rule 5.]
Should an extension of time be needed, the applicant must request it in the application for leave [paragraph 72(2)(c) and Rule 6(1)].
Rule 23 states that the fee to file an application for leave is $50.
Notice of Appearance
Pursuant to Rule 8(1), the respondent must file Form IR-2, Notice of Appearance, together with proof of service, within 10 days of service of the application for leave.
Tribunal's Decision and Reasons
If the applicant has indicated in the instituting application that written reasons of the tribunal have not been received, the Federal Court Registry will send a letter to the tribunal in Form IR-3, entitled Request to Tribunal
[Rule 9(1)].
The tribunal will then send copies of the decision and written reasons to the parties and the Federal Court Registry, or an appropriate written notice if no reasons were given. The applicant will be deemed to have received the written reasons, or the notice, on the tenth day after it was posted by the tribunal [Rule 9(2) and (4)].
Perfecting the Application for Leave
The time limits for completing an application for leave are set out in Rule 10(1):
- where the applicant has the written reasons, within 30 days; or
- where the Federal Court Registry has requested the written reasons, within 30 days of their receipt or receipt of the notice of no reasons.
The applicant must file, together with proof of service on every respondent, a record with the following, on consecutively numbered pages, in this order:
- the application for leave;
- the subject decision or order, if any;
- the written reasons of the tribunal, or the notice of no reasons;
- one or more supporting affidavits verifying the facts relied on by the applicant in support of the application; and
- a memorandum of argument with written submissions of the facts and law relied upon.
[This information is found in Rule 10(2).]
Respondent's Affidavits and Memorandum of Argument ─ Rule 11
The respondent has 30 days from the date of service of the applicant's record to file, with proof of service on the other parties, one or more affidavits and a memorandum of argument.
Affidavits
Rule 12(1) refers to the content of affidavits filed in support of an application. Cross-examination of a deponent on an affidavit will not be permitted before leave is granted to commence an application for judicial review unless an order of the Federal Court is obtained [Rule 12(2)]. For affidavits in the Federal Court and Federal Court of Appeal generally, refer to Federal Courts Rules 80 to 86.
Reply Memorandum ─ Rule 13
The applicant has authority to file a memorandum of argument in reply, with proof of service on the respondent, within 10 days of service of the respondent's memorandum.
Disposition of Application for Leave
An application requesting leave to commence an application for judicial review is determined without the personal appearance of the parties, unless a judge of the Federal Court otherwise orders [paragraph 72(2)(d)].
If the applicant has applied for an extension of time, it is disposed of at the same time as the application for leave and on the basis of the same materials as the application for leave [Rule 6(2)].
The Court must comply with the provisions of the Act [paragraph 72(2)(d)] which require any applications for judicial review under the Immigration and Refugee Protection Act to be disposed of without delay and in a summary way. Therefore, a judge may render a decision on an application for leave without further notice to the parties when:
- a party has not acted within the time limits required for the service and filing of a document, or
- the applicant's reply memorandum has been filed, or the time to do so has expired [Rule 14(1)].
If it is found that further material from the tribunal is necessary in order to reach a decision on the application for leave, the judge may set out in an order the documents to be produced and filed. This order will then be transmitted to the tribunal by the Federal Court Registry [Rule 14(2) and (3)]. After receipt of such an order, the tribunal will send a certified copy of the materials requested to each of the parties and two copies to the Federal Court Registry [Rule 14(4)].
There is no right to appeal a decision on an application for leave [paragraph 72(2)(e)].
PROGRESS OF A LEAVE APPLICATION SUMMARIZED
- The applicant files an application for leave and for judicial review ─ Form IR-1 ─ and serves certified copies on the respondent within 15 days of notification of the decision [paragraph 72(2)(b); Rules 4(2) and 7(1)].
- The applicant pays the fee set out in Rule 23.
- The applicant files proof of service within 10 days of service [Rule 7(2)].
- The respondent files a Notice of Appearance ─ Form IR-2 ─ and proof of service within 10 days from the service of the application [Rule 8(1)].
- If required, the Federal Court Registry will send a Request to Tribunal ─ Form IR-3 ─ for written reasons or a notice that none exists [Rule 9(1)].
- The applicant prepares and files a record, with proof of service, within 30 days of instituting the proceeding or 30 days from receipt of the tribunal's reasons [Rule 10].
- The respondent has 30 days to file the affidavit(s) and memorandum of argument, together with proof of service [Rule 11].
- The applicant may file a reply memorandum within 10 days of service of the respondent's memorandum [Rule 13].
- The application for leave is considered without personal appearance [paragraph 72(2)(d)].
- If leave is refused, there is no appeal [paragraph 72(2)(e)].
JUDICIAL REVIEW WHERE LEAVE HAS BEEN GRANTED
If leave is granted, all material filed on the application for leave will be retained by the Federal Court Registry for the use of the Court at the hearing of the application for judicial review [Rule 16]. At this stage the judge will fix a place for hearing the judicial review proceeding and set a date that is between 30 and 90 days from the date of the order granting leave, unless the parties agree on an earlier time [paragraphs 74(a) and (b)].
The order of the Federal Court granting leave will include:
- the place, language and date for hearing of the judicial review application;
- the time limit within which the tribunal is to send copies of its record under Rule 17;
- the time limits within which further material, if any, including affidavits, transcripts of cross-examinations, and memoranda of argument are to be served and filed;
- the time limits within which cross-examinations, if any, on affidavits are to be completed; and
- any other matter that the judge considers necessary or expedient for the hearing of the application for judicial review [Rule 15(1)].
The Federal Court Registry will send a copy of this order to the tribunal and it will be considered to have been received by the tribunal on the tenth day after mailing [Rule 15(2) and (3)].
Obtaining Tribunal's Record ─ Rule 17
Upon receipt of an order granting leave, the tribunal is required to prepare a record containing the following documents, in the sequence given, on consecutively numbered pages:
- the decision or order in respect of which the application is made and the written reasons given therefore;
- all papers relevant to the matter that are in the possession or control of the tribunal;
- any affidavits or other documents filed during any such hearing; and
- a transcript, if any, of any oral testimony given during the hearing, giving rise to the decision or order or other matter that is the subject of the application.
The tribunal will then send certified copies to the parties and two copies to the Federal Court Registry, in accordance with Rule 17.
Hearing of Judicial Review Application
The Federal Court will hold a hearing of the judicial review application at the time and place set out in the order [Rule 15]. The hearing must be held no sooner than 30 days and no later than 90 days after leave was granted, unless the parties agree to an earlier date [section 74]. The hearing provides the parties with an opportunity to present oral submissions with respect to the judicial review application.
Disposition of Application for Judicial Review
Decisions on judicial review applications concerning immigration and refugee matters may not be appealed to the Federal Court of Appeal unless the judge of the Federal Court has certified that a serious question of general importance is involved and has stated the question [paragraph 74(d)]. At the end of the hearing of the review application, the Federal Court judge will give the parties an opportunity to specify the question to be considered for certification [Rule 18]. (A partial status list of certified questions is maintained on the Federal Court website.)
The judgment on the judicial review application will then be delivered from the bench or reserved.
JUDICIAL REVIEW PROCEDURE SUMMARIZED
- If leave is granted, a Federal Court order is issued, setting out details and time limits for the filing of further material, together with the date, time and place fixed for the hearing of the judicial review application.
- The Federal Court Registry sends the order to the tribunal.
- The tribunal prepares a record and sends certified copies to the parties and the Federal Court Registry [Rule 17].
- The matter is heard, the issue of certification for appeal dealt with, and a decision rendered by the Federal Court.
Appeals
Upon certification of a serious question of general importance, the Federal Court judge's decision may be appealed [paragraph 74(d)]. The notice of appeal, complying with Form IR-4, must be filed in the Federal Court of Appeal within 30 days after pronouncement of judgment or within such time as a judge of the Federal Court so orders [Rule 20]. The filing fee is $50 [Rule 23]. The notice of appeal must be served on all parties, and proof of service must be filed within 15 days of the filing of the notice of appeal [Rule 20(2)]. The parties then follow the requirements set out in Part 6 of the Federal Courts Rules [Rule 4(1)].
GENERAL PROVISIONS
Time Limits in the Federal Courts Immigration and Refugee Protection Rules
Only upon application to a judge or prothonotary of the Court may the time limits in these Rules be varied [Rule 21(2)].
Costs
Except where the pertinent Court has special reasons for ordering otherwise, no costs are payable respecting an application for leave, an application for judicial review or an appeal [Rule 22].
Consent Orders
Refer to the Practice Direction issued by the Court, dated April 18, 2006, and reproduced at the end of this booklet for the procedure to follow in respect of requests for consent orders to dispose of applications for judicial review under the Immigration and Refugee Protection Act.
SUMMARY OF THE PROGRESS OF AN APPLICATION FOR LEAVE AND JUDICIAL REVIEW
In summary, a proceeding of this type will generally follow the course outlined below.
- The applicant files an application for leave and for judicial review ─ Form IR-1 ─ and serves certified copies on the respondent within 15 days of notification of the decision for a matter arising in Canada, or within 60 days for a matter arising outside Canada [paragraph 72(2)(b); Rules 4(2) and 7(1)].
- The applicant pays the fee set out in Rule 23.
- The applicant files proof of service within 10 days of service [Rule 7(2)].
- The respondent files a Notice of Appearance ─ Form IR-2 ─ and proof of service within 10 days from the service of the application [Rule 8(1)].
- If required, the Federal Court Registry will send a Request to Tribunal ─ Form IR-3 ─ for written reasons.
- The applicant prepares and files a record, with proof of service, within 30 days of instituting the proceeding or 30 days from receipt of the tribunal's reasons [Rule 10].
- The respondent has 30 days to file the affidavit(s) and memorandum of argument, together with proof of service [Rule 11].
- The applicant may file a reply memorandum within 10 days of service of the respondent's memorandum [Rule 13].
- The application for leave is considered without personal appearance.
- If leave is refused, there is no appeal.
- If leave is granted, a Federal Court order will be issued, setting out details and time limits for the hearing of the judicial review application.
- The Federal Court Registry sends the order to the tribunal.
- The tribunal prepares a record and sends certified copies to the parties and the Federal Court Registry [Rule 17].
- The matter is heard, the issue of certification dealt with, and a decision rendered by the Federal Court.
Appeal
- If a question has been certified, a notice of appeal must be filed within 30 days of the judicial review decision.
- The filing fee set out in Rule 23 is paid.
- Proof of service is filed within 15 days of the decision.
- The parties comply with the procedural steps contained in Part 6 of the Federal Courts Rules.
- The appeal is heard and determined by the Federal Court of Appeal.
Immigration Practice Guide, continued
