Judicial Review is a legal process in which a court judge reviews a decision by an administrative tribunal or government decision-maker. The process is revised making sure its outcome was reasonable, fair, and lawful. Judicial Reviews are limited to the process and are not to be seen as second opportunities for a party to re-argue a case. If after reviewing the process the Court finds that the administrative body made a legal error, an instruction to make a new decision will follow.
Administrative bodies must follow proper procedures in arriving at decisions:
- The process may be set out in the statute or regulation; if not,
- Common law principles (the principles of natural justice) apply to ensure all persons subjected to government action are treated fairly.
The principles of natural justice ensure that every person whose interests are at risk is entitled to participate in a process where a decision is taken (right to be heard); and that every decision made is impartial and not biased.
Procedural fairness depends on:
- The making of an administrative (not a legislative or policy based) decision
- The nature of the power being exercised (based on powers given under an enabling statute)
- The rights, interests, privileges affected
- The consequences to the individual that are at stake
Immigration officers must rely on the principles of procedural fairness, specifically the applicants’ right to be heard which requires that the applicants be advised of significant facts that are likely to affect the outcome of their applications. In practice, this does not always happen.
To ensure that the applicants have a meaningful opportunity to participate, decision makers must give sufficient notice about any process or interview that could result in a decision on their application and must give the applicants a reasonable opportunity to bring evidence or make arguments supporting their application. Decision-makers should tell applicants which documents may be required in order to address concerns.
If the procedural fairness principle was violated, the person affected may have some grounds for judicial review. In practice, some applications consider more the principle of procedural fairness than others. This should not be the case. For example, we see that in Express Entry applications, the principle is pretty much ignored.
If you were not given sufficient opportunity to address the officer’s concerns in your immigration application and were refused, there might be grounds for Judicial Review.
In the event of filing for Judicial Review, for immigration decisions, the standard of review to be followed by the Federal Court of Canada has already been established in several leading cases, and the standard is “reasonableness”.
Reasonableness means a court has to look at whether the decision is “reasonable.” There can be more than one “reasonable” outcome. Courts have to accept any decision that’s “reasonable.” The Court will accept it even if they would have decided something different themselves. If a decision isn’t “reasonable,” a judge should normally send it back to the officer for another look. The officer may come to the same result, or something different. Rarely, a court may just decide to replace the decision-maker’s outcome with its own.
The Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (and its companion decision Bell Canada v Canada (Attorney General), 2019 SCC 66) attempts to set high standards for administrative authorities to meet and it has addressed the criticism of the “reasonableness” standard by setting high standards for tribunals to provide detailed, cogent and rational reasons to justify their decisions. This is very good for applicants.
If you are considering filing an application for judicial review you should contact our legal team as soon as possible after receiving the administrative decision. The time limit for when a party can file an application for judicial review varies. Therefore, it is important to act promptly.