Simon K. Yu, Barrister & Solicitor

Federal Court applications - Application for Leave and for Judicial Review

If you disagree with a decision made against you by the Immigration and Refugee Board (IRB), Immigration, Refugees & Citizenship Canada (IRCC), or Canada Border Services Agency (CBSA), you can apply to seek the Federal Court’s intervention to judicially review the decision as long as you have exhausted any appeal mechanism set up under the law or if there is no other appeal mechanism. This Federal Court process is called Application for Leave and for Judicial Review.

There are time limitations and procedure in commencing this Application and in perfecting your Applicant’s Record (ie filing and serving your legal argument). This Application can potentially be a 2-stage process.  But you have to be successful in seeking the Federal Court’s approval to grant you Leave first before you can proceed to the second stage of judicial review.  If the Federal Court agrees with the decision you are challenging, the Federal Court will dismiss your Application for Leave and the dismissal decision will bring an end to this Federal Court process. 

If the Federal Court grants you Leave, you can then proceed to the judicial review stage which requires you (if you do not have a legal counsel) or your legal counsel to appear in court to present your legal argument. This judicial review proceeding usually takes place in about 90 days from when the Court grants you Leave.

If the Federal Court Judge presiding at the judicial review proceeding agrees with the decision you are challenging, the Judge will dismiss your judicial review application.  If the Federal Court Judge certifies a serious question of general importance, the dismissal decision can be appealed to the Federal Court of Appeal. If there is no question certified, the dismissal will then bring this Federal Court application process to a conclusion.

However, if the Federal Court Judge agrees with your argument(s) regarding the existence of reviewable error(s) in the decision you are challenging, the Judge will return your matter back to the original decision making body for a redetermination by a different IRB member, IRCC officer or CBSA officer as the case may be.