Judicial review — leave and certified questions
Overview
Applications for judicial review in immigration matters require the leave (permission) of the Federal Court under s 72 of IRPA. The applicant must file for leave within 15 days (in Canada) or 60 days (outside Canada) of being notified of the decision. The leave application is decided on the papers, without a hearing, on a standard of whether the application raises an arguable issue. If leave is denied, there is no appeal. If granted, the judicial review proceeds. The only route to appeal a Federal Court decision to the Federal Court of Appeal is by the judge certifying a serious question of general importance.
The leave requirement is a significant gatekeeping mechanism in Canadian immigration judicial review. Approximately one-third to one-half of leave applications in immigration matters are refused. The combination of the leave requirement and the certified question mechanism means that very few immigration cases reach the Federal Court of Appeal.
Legal basis
- IRPA s 72 — the leave requirement; the application for leave must be filed within 15 days of being notified in Canada (60 days if outside); leave is granted or refused without a hearing unless the court orders otherwise
- IRPA s 73 — where leave is granted, judicial review proceeds; the respondent (usually the Minister) must provide a certified record of the proceedings
- IRPA s 74 — the only route to the Federal Court of Appeal: the judge must certify that the case involves a serious question of general importance, and the certified question is set out in writing
- Federal Courts Rules, SOR/98-106, rr 306–323 — the procedural rules for leave and judicial review applications
How it works
Step 1 — Filing the leave application
The applicant must file an application for leave and judicial review in the Federal Court within the statutory time limit:
- 15 days from the date of notification — if the applicant is in Canada
- 60 days from the date of notification — if the applicant is outside Canada
Time extensions are rarely granted; missing the deadline is almost always fatal to the judicial review. The leave application must set out the grounds on which judicial review is sought and why leave should be granted.
Step 2 — Leave decision
Leave is decided on the papers by a Federal Court judge, without a hearing unless the court orders one (which is unusual). The test for leave is whether the application raises an arguable issue — that is, a serious issue that is not frivolous or vexatious and that might succeed if fully argued. The leave decision is not a determination of the merits.
A refused leave application cannot be appealed. The applicant's only remaining option is a fresh application (if circumstances change) or political/H&C avenues.
Step 3 — Judicial review on the merits
If leave is granted, the case proceeds to a full judicial review hearing before a Federal Court judge. The hearing is on the record of the proceeding below — fresh evidence is not normally admitted. The judge applies the appropriate standard of review (reasonableness for most immigration decisions) to determine whether the decision should be set aside.
Certified questions — the only appeal route
Section 74 of IRPA provides that no appeal lies from a Federal Court decision in immigration judicial review unless the judge certifies that the case involves a serious question of general importance. A serious question must:
- Be a question of law (not fact)
- Be determinative of the appeal
- Transcend the interests of the immediate parties and raise issues of broad significance
Certified questions are rare. The vast majority of immigration judicial review decisions are final at the Federal Court level.
Stays of removal pending judicial review
A judicial review application does not automatically stay a removal order. The applicant must bring a separate motion to the Federal Court for a stay of removal, based on the three-part test: (1) a serious issue to be tried; (2) irreparable harm if removal proceeds; and (3) the balance of convenience favours the stay.