The Federal Court of Canada: How to Proceed with Immigration Challenges

    Was your Canadian immigration visa application declined? Are you looking for a chance to get your immigration case reviewed? Canadian Immigration law authorizes you to request the Federal Court of Canada to review immigration decisions. 

    The Federal court provides you a chance to overturn any decision based on an error made by any federal board, commission or tribunal.

    How to Proceed to the Federal Court? 

    Requesting the Federal Court for a review is a 2 stage process:

    Leave stage: In this stage, you are required to present documents about your case to the court. 

    You must be able to demonstrate why the decision was unfair or unreasonable or that there was some sort of error made. 

    The Federal Court providing leave means that it has agreed to review your case in detail.

    Judicial Review Stage: In this stage, you are required to attend an oral hearing before the court and attest to the reasons for requesting the review. 

    This application can be filed by anyone directly affected by the decision or an order made by a federal board, commission or tribunal.

    If the leave is given by the court, then you can progress to the second stage of judicial review known as “Application for Judicial Review.”

    For some cases, requesting a review from the Federal Court automatically grants you a stay of removal, which means that your removal order is on hold until the court reviews your application and comes to a final decision.

    What is the Basis for Judicial Review in the Federal Court?

    If you perceive that an error of law was made regarding your immigration case, then you have the basis to ask for a judicial review. 

    An error of law can be the following:

    • Prejudice of the decision maker (this issue must be raised before the decision maker at the earliest opportunity)
    • Acting without or beyond jurisdiction
    • Violation of procedural fairness
    • Using the wrong legal test
    • Restricting discretion
    • Taking actions contrary to the law
    • Misunderstanding or ignoring a statute or case law
    • If the decision maker misapplies a legal test to a set of facts, it is considered error of mixed fact or law
    • If the decision maker makes an incorrect determination of fact based on evidence, it is considered error of fact

    If the court allows a judicial review, then the original decision on your case is set aside and it is sent back to the decision maker to be reviewed.

    What Else do You Need to Know About the Federal Court Proceedings?

    Stay of Removal: As a noncitizen (a foreign national or a foreign national with permanent residence), you can be issued 3 types of removal orders which carry very specific consequences:

    • Deportation Order: If you are issued a deportation order, then you will be removed from Canada immediately. You will be arrested by the Canadian Border Service Agency (CBSA) and will be restricted from entering Canada ever again.
    • Exclusion Order: If you are issued an exclusion order, then you are restricted from entering Canada for a period of time, which is usually 1 to 2 years.
    • Departure Order: If you are issued a departure order, then you are provided with 30 days to leave Canada voluntarily. If you fail to do so, then the departure order is converted into a deportation order.

    Mandamus: If your application has been pending for too long with the government department, Immigration, Refugees and Citizenship Canada (IRCC), then you can seek a judicial remedy to move your case forward. 

    A writ (written command in the name of a court to act, or abstain from action) of Mandamus is an official order issued by a court to any government agency or public authority to do something which that body is legally obliged to do anyway.

    If you are pleading for a writ of Mandamus, then you must demonstrate that you have a legal right to compel the authority to do something specific. The writ must meet two requirements:

    • It must be a public act
    • It must be an important and not an optional act

    You must be able to prove that you have previously made a demand for the completion of that act within a duration of time. That way you can rightfully claim that the authority concerned had failed to do their duty and therefore, an application for Mandamus is a last resort. 

    You Can Appeal a Decision Made by the Following Immigration and Refugee Board (IRB) Divisions in the Federal Court:

    Immigration Division: is 1 of the 4 divisions of the Immigration and Refugee Board (IRB) that conducts admissibility hearings and detention reviews under the Immigration and Refugee Protection Act (IRPA).

    Immigration Appeal Division (IAD): is 1 of the 4 divisions of the Immigration and Refugee Board (IRB) that apprehends and decides on different immigration appeals. 

    What is the Time Period to Apply to the Federal Court?

    There are different deadlines for different statutes. Generally, you are required to file an application for judicial review within 15 days, if the case matter occurs in Canada, or within 60 days, if the case matter occurs outside Canada. 

    However, some cases may have very specific deadlines. For example, in the case that your refugee protection claim has been rejected, you are required to file a ‘notice of application’ within 15 days of the IRB’s decision.

    After this initial application has been submitted, you have 30 days to file the Application Record, which includes your legal documents and evidence to support your case. 

    At this stage, it is generally advisable to hire an immigration litigation lawyer as soon as possible.

    Once a notice of application has been submitted, you have 30 days to file an affidavit that contains the evidence and gives basis for your plea of review. 

    What About Your Status of Removal?

    Whether or not you will be allowed to stay in Canada while your application is under review is decided by the IRB division that made the initial decision. 

    These are the last 2 divisions of the IRB:

    Refugee Appeal Division: If the decision you are looking to review was made by this division, then your removal order will be put on hold. You will be allowed to stay in Canada until the federal court makes the decision.

    Refugee Protection Division: If the decision you are looking to review was made by this division, then your removal order is not put on hold. You will be required to leave Canada until the Federal Court makes their decision.

    Ultimately, if the court decides that no error was made, then you must leave Canada within 30 days. 

    However, if the court returns your case back to the IRB for further review, then your case will be reconsidered. However, that does not guarantee that the IRB will change the original decision.

    Why is it Necessary to Seek Legal Representation?

    Has your Canadian immigration application been rejected? Have you been refused entry to Canada or is it much worse? 

    Treated unfairly by the Canada Border Services Agency (CBSA) or the Immigration, Refugees and Citizenship Canada (IRCC), by a tribunal or by an immigration officer?

    Distressed over your situation? Is a family member involved?

    There can be hope for almost every negative situation on an immigration-related decision. 

    Your current outcome is not definitive, it can be challenged.

    Under Canadian immigration laws, almost all refused applicants have the right to seek judicial review of their immigration challenges. Most foreign nationals, permanent residents and most sponsors also have rights to appeal their cases.

    At My Visa Source, our experienced immigration litigation lawyers have successfully represented our clients in front of The Federal Court and the four divisions of the Immigration and Refugee Board (IRB).

    Immigration is a complex process that requires expert familiarity with frequent changes to immigration law, strong legal strategy and representation, precise paperwork and perfect attention to detail, reducing the risk of wasted time, money or permanent rejection.

    We take on cases with regular circumstances to ones that are very complex. Our processes have been honed to streamlined efficiency over a decade with a team who are happy, experienced, understanding, patient, cooperative, careful, neat, thorough and easy to work with. Communication with our clients is one of the keys to our success.

    Why Contact My Visa Source?

    With over a decade of helping people from over 120 countries on Canadian immigration matters and litigation.

    You can judge for yourself the reputation of our immigration law firm. 

    Just Google, “My Visa Source Toronto” or “My Visa Source Vancouver” and read some of our combined 700+ reviews.

    Contact us and let our immigration litigation lawyers quickly find out about every detail and sequence involving your situation, so that we can move forward on your behalf.

    There are strict time frames involved, so contact us immediately through our online assessment, it takes less than a minute to complete.

    Or simply pick up your mobile phone and call us now at any of these numbers: 

    Vancouver at 604-800-1681

    Toronto at 416-900-1044

    Toll-Free at: 1-888-509-1987

    We’re open 6am-9pm, 7 days a week and are ready for video and phone consultations.