Immigration Judicial Review vs. Immigration Appeal
You could challenge the decision you have received in your immigration case by requesting a judicial review or appealing your immigration decision.
You have the right to appeal a decision that you have received on your immigration application. Immigration appeals could be made to the Immigration Appeal Divison of the Immigration and Refugee Board.
To make an appeal, you should prove one or more of the following:
- There was an error in law or facts;
- A principle of natural justice has not been followed;
- Sufficient humanitarian or compassionate grounds exist which needs to be taken into consideration
Once you have filed an appeal, one of the following could happen:
- Your appeal could be dismissed which means the decision will not be changed; or
- Your appeal could be allowed and
- The immigration decision could be changed; or
- Your immigration file will be sent back to the decision-maker for reconsideration
Before receiving a decision on your appeal, your immigration file will be fully reviewed and you will be given a hearing date.
The appeal will take place in the Immigration Appeal Divison proceeded by a Board Member. It’s noteworthy to mention that during an appeal, you are allowed to submit new documents and the appellant is allowed to testify.
If your appeal is dismissed, you will have 15 days to file a Judicial Review at the Federal Court of Canada.
Immigration cases that can be appealed to the Immigration Appeal Divison include the following:
- Spouse Sponsorships
- Family Class Sponsorships
- Residency Obligations
- Removal Orders against permanent residents, refugees, and other protected persons (as well as foreign nationals with PR visa)
- Minister’s Appeal of a decision of the Immigration Divison
Immigration Judicial Review
Immigration Judicial Reviews will be heard by the Federal Court of Canada which is Canada’s national court. During a judicial review, the court will decide if the decision was fair and reasonable.
A new decision cannot be replaced by the Federal Court and if the Court finds the decisions unfair or unreasonable, a redetermination will be ordered and the case will be sent back to a different officer or Board Member to be reviewed. A reconsideration of your immigration file does not guarantee approval.
Unlike immigration appeals, in judicial reviews, the appellant does not have the right to testify. Having your case heard by the Federal Court could take up to two years.
Judicial Review has two stages:
- You will file an Application for Leave and Judicial Review — you are requesting permission to have the matter resolved by the Court
- At this stage, you will either be granted leave for judicial review (in which case, you will move to stage two); or
- Your leave for judicial review will be rejected (in which case, the application will be dismissed)
- A hearing date will be determined and the immigration decision will be fully reviewed.
You could directly file a Judicial Review at the Federal Court for the following immigration cases:
- Federal Skilled Worker
- Canadian Experience Class
- Investor cases
- Provincial Nominee Program
- Live-in Caregiver
- Work Permit
- Study Permit
- 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