Section 72 — Right to judicial review
Text of provision
(1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is, subject to section 86.1, commenced by making an application for leave to the Court.
(2) The following provisions govern an application under subsection (1):
(a) the application may not be made until any right of appeal that may be provided by this Act is exhausted;
(b) subject to paragraph 169(f), notice of the application shall be served on the other party and the application shall be filed in the Registry of the Federal Court (“the Court”) within 15 days, in the case of a matter arising in Canada, or within 60 days, in the case of a matter arising outside Canada, after the day on which the applicant is notified of or otherwise becomes aware of the matter;
(c) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice;
(d) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance; and
(e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.
Plain English
Section 72 gives any person who is subject to a decision or order, or who is otherwise directly affected by a matter arising under IRPA, the right to apply to the Federal Court for judicial review of that decision.
Section 72(2) sets out procedural requirements: an application for leave to commence judicial review must be filed within 15 days (for in-Canada matters) or 60 days (for out-of-Canada matters) of the decision.
Practical effect
Judicial review in immigration matters proceeds in two stages: first, an application for leave (permission to proceed); then, if leave is granted, the substantive judicial review hearing. The Federal Court has held that leave should be granted where the application raises an arguable issue.
The standard of review for most immigration decisions is reasonableness (post-Vavilov [2019] SCC 65). Correctness review is reserved for constitutional questions and questions of central importance to the legal system. A successful judicial review results in the decision being quashed and remitted for redetermination — the Federal Court does not substitute its own decision (except in rare cases).