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Judicial Review and Appeal
An appellant or applicant file an appeal or an application for judicial review in the context of Canada immigration to challenge a decision adverse to their interests. An appeal shall be submitted when:
- You are refused in Canada or overseas
- You are facing deportation
- You think you have received an unfair decision
- You were denied a permanent or temporary entry to Canada/ Canadian citizenship/PR visa
Application for leave
An appeal on an immigration decision, submitted to the Federal Court, is usually called application for leave and judicial review. The first stage of the appealing process is called ‘leave.’ At this stage, the court considers the appeal by written arguments and evidence submitted by the lawyer who represents the appellant, the lawyers for the immigration department, the Department of Justice.
The lawyer of the appellant first files a notice to the court informing that the appellant is appealing the decision. The notice must be filed within 15 days of an inland decision or 60 days of an overseas decision. Then the lawyer files an application record, which includes arguments and evidence in favour of the appellant. It must be submitted within 30 days after filing the notice. The Department of Justice can file a written reply within 30 days, and the appellant’s lawyer can file a further written reply within ten days.
Often, the Department of Justice settles the case at this stage. Otherwise, the Court will grant or deny leave after reading arguments from both parties. This is done within four to six months after filing the notice.
If the leave is denied, the appellant will not be able to appeal further. If it is granted, a judicial review date will be scheduled by the court, which will fall within three months. During this period, the appellant may submit more arguments or evidence.
The judicial review hearing is taken place at the Federal Court. The appellant need not testify at the judicial review as all the evidence has already been submitted in the application record. But the appellant, his family and friends can observe the proceedings from the gallery. The judge will not make the decision there, but send a copy of the judgment in writing to the appellant’s lawyer. It may take a month or two. On rare occasions, the judge may announce his decision on the spot.
If the judge’s decision is against the interest of the appellant, he/she may approach the Federal Court of Appeal, provided the judge thinks the case is relevant to issues that may affect other people. The Department of Justice may also approach the Federal Court of Appeal if the decision is against them.
If the decision is in favor of the appellant, his/her case will be sent to another decision maker for reconsideration. The case may be refused again, which can again be appealed.
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