Section 74 — Judicial review — decisions are final
Text of provision
Judicial review is subject to the following provisions:
(a) the judge who grants leave shall fix the day and place for the hearing of the application;
(b) the hearing shall be no sooner than 30 days and no later than 90 days after leave was granted, unless the parties agree to an earlier day;
(c) the judge shall dispose of the application without delay and in a summary way; and
(d) subject to section 87.01, an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.
Plain English
Section 74(d) provides the key rule: the Federal Court may make a stay of removal pending the determination of a judicial review application. Section 74 also establishes that decisions of the Federal Court are final unless the Court certifies a serious question of general importance.
An application for judicial review does not automatically stay a removal order. A separate stay application must be made and the applicant must satisfy the three-part test: (a) a serious issue to be tried; (b) irreparable harm if the stay is not granted; (c) balance of convenience favours granting the stay.
Practical effect
The stay test in immigration matters is well-established by the Federal Court. Departure from Canada typically renders a judicial review application moot, so a stay is often critical to preserving the applicant's ability to pursue review. The Minister opposes most stay applications. Where the underlying judicial review application is dismissed, the stay dissolves and removal can proceed. Where the application is allowed, the matter is returned to the original decision-maker for reconsideration.