Having the Federal Court review the decision

Challenging an unfavourable refugee decision

An unfavourable decision on a refugee claim can sometimes be challenged before the Federal Court of Canada by way of an application for leave and judicial review.

Judicial review is not an appeal, and it is not a fresh presentation of the refugee claim. The Court examines instead whether the decision is reasonable and whether the process that led to it met the requirements of procedural fairness.

Where the Court concludes that the decision contains an error warranting its intervention, it may set the decision aside and send the file back so that a new decision can be made by a different decision maker.

Which decisions can be challenged?

In the refugee context, judicial review may be directed in particular at:

• an unfavourable decision of the Refugee Protection Division where the person has no right of appeal to the Refugee Appeal Division
• a decision of the Refugee Appeal Division confirming the rejection of the refugee claim
• certain other decisions of the Immigration and Refugee Board of Canada relating to a refugee claim

Where a right of appeal to the RAD exists, that remedy must be exercised first before judicial review can be sought in the Federal Court.

Whether an application for judicial review can be brought depends on the nature of the decision, on the remedies already exercised, and on the particular circumstances of the file.

A two-stage procedure

The procedure begins with an application for leave. At this first stage a judge reviews the written material to decide whether the file warrants a hearing.

If leave is refused, the file is closed. If leave is granted, the Court sets a hearing at which the parties present their arguments on the errors alleged against the decision under review.

Very short time limits

Where a decision on a refugee claim is made in Canada, the application for leave and judicial review must generally be filed within 15 days of the date on which the person is notified of the decision or otherwise becomes aware of it.

The starting point of that time limit must nonetheless be checked carefully. In certain circumstances, in particular where a decision is sent by the IRB through the My Case portal, the date of that transmission may be treated as the start of the time limit, even if the applicant or their representative only becomes aware of it later.

Meeting this time limit can also have a significant effect on the enforcement of a removal order. In some files, in particular where an unfavourable RAD decision is challenged, filing the application within the applicable time limit may result in a stay of the removal order while the proceeding runs its course.

Where the time limit has already expired and an extension of time is required, that stay does not apply in the same way, and the person may be exposed to the enforcement of their removal order.

This time limit runs from the later of two events: notification of the decision and transmission of the written reasons.

It is therefore important to act quickly upon receiving an unfavourable decision, in order to assess the available remedies and the steps to be taken.

Judicial review and removal orders

Filing an application for leave and judicial review may, in certain situations, result in a stay of the removal order. That is the case in particular where an unfavourable decision of the Refugee Appeal Division is challenged before the Federal Court, subject to the exceptions provided by law.

That stay does not apply in every situation, however. For example, where the Refugee Protection Division rejects a refugee claim with a finding of no credible basis, the person has no right of appeal to the RAD, and filing a judicial review of that decision does not automatically suspend the removal order.

Where no automatic stay applies and a removal is imminent, a separate motion for a stay may have to be brought before the Federal Court to ask that the removal be suspended temporarily.

Why rigorous legal analysis matters

Succeeding requires more than disagreeing with the decision. The errors capable of warranting the Court's intervention must be identified precisely, in particular:

• a finding that fails to take an important piece of evidence into account
• an unreasonable interpretation of the facts or of the law
• reasons that are insufficient, inconsistent or contradictory
• a breach of the right to be heard
• a failure to observe the rules of procedural fairness
• the application of the wrong legal test

The Court's analysis generally bears on the material that was before the decision maker at the time the decision was made. Filing new evidence remains exceptional.

How we can work with you

Our team can in particular:

• review the decision and the documents on the file
• determine whether an appeal to the Refugee Appeal Division is available or whether judicial review should be considered
• assess the reasonable prospects of success of the remedy
• identify the relevant legal, factual or procedural errors
• prepare and file the application for leave and judicial review
• draft the affidavits, the applicant's record and the memorandum of argument
• negotiate, where possible, a settlement with the Department of Justice
• bring a motion for a stay where a removal is imminent
• represent the applicant at the hearing before the Federal Court

A person who chooses to be represented before the Federal Court must retain a lawyer authorized to practise there. An immigration consultant cannot act as counsel before the Federal Court.

Acting quickly after a refusal

The applicable time limits are very short, and their starting point must be checked carefully. A prompt consultation makes it possible to analyse the reasons for the refusal, to preserve the remedies available, and to determine what steps to take.

If your refugee claim or your appeal to the Refugee Appeal Division has been refused, contact our team quickly to obtain a legal assessment of your file.