Article
IRCC Refused Your Application: Is Judicial Review Worth It?
Opening a refusal letter from Immigration, Refugees and Citizenship Canada (IRCC) can be stressful and discouraging. Whether you applied for a visitor visa, study permit, work permit, permanent residence, or another immigration benefit, a refusal can leave you wondering what went wrong and what you can do next.
The good news is that a refusal does not always mean the end of the road.
Depending on the reasons for the decision, you may be able to submit a stronger application or challenge the refusal through judicial review at the Federal Court of Canada. The right option depends on why your application was refused and, importantly, how quickly you act.
What Is Judicial Review?
Judicial review is a legal process through which the Federal Court reviews an immigration decision to determine whether it was reasonable and procedurally fair.
It is important to understand that judicial review is not a new immigration application or a traditional appeal. The Federal Court does not simply reconsider your profile and decide whether it would have approved your application.
Instead, the Court examines the decision-making process. For example, judicial review may be appropriate where an immigration officer:
- overlooked or misunderstood important evidence you submitted;
- made a significant factual error;
- reached a conclusion that was not reasonably supported by the evidence;
- failed to adequately explain the decision; or
- did not provide a fair opportunity to respond to concerns where procedural fairness required it.
If the Federal Court finds that the decision was unreasonable or procedurally unfair, it may set aside the refusal and return the application to IRCC for redetermination, generally by a different decision-maker.
This does not guarantee approval, but it gives the application another opportunity to be decided fairly and reasonably.
Can I Appeal a Visitor Visa Refusal?
One of the most common questions after an IRCC refusal is: "Can I appeal my visitor visa refusal?"
There is generally no traditional right of appeal to the Immigration Appeal Division for a temporary resident visa refusal. However, a refusal may be challenged through an application for leave and judicial review before the Federal Court where there are legal grounds to do so.
The same may apply to refusals of study permits, work permits, and many other immigration applications. Whether judicial review is worthwhile depends on the reasons for the refusal and the evidence that was before the officer when the decision was made.
Judicial Review vs. Reapplying: Which Is Better?
Not every refusal should go to Federal Court. In some cases, submitting a new and stronger application may be the better option.
Reapplying may make sense if your original application was missing documents, contained weak supporting evidence, or did not adequately address an important eligibility concern. A new application allows you to correct those weaknesses and provide additional evidence.
Judicial review may make sense if your application was complete and well-supported, but the officer appears to have ignored important evidence, misunderstood the facts, applied the law incorrectly, or reached a conclusion that was unreasonable or procedurally unfair.
For example, if an officer refused a visitor visa because they were not satisfied that you had sufficient ties to your home country, but your application contained substantial evidence of employment, property, family responsibilities, and other ties that were apparently overlooked, the decision may warrant closer legal review.
Simply submitting the same application again without understanding what went wrong can result in another refusal.
How Long Do You Have to Apply for Judicial Review?
This is where timing becomes extremely important.
Under section 72 of the Immigration and Refugee Protection Act, an application for leave and judicial review generally must be filed and served within:
- 15 days for a matter arising in Canada; or
- 60 days for a matter arising outside Canada.
The deadline generally runs from the day you are notified of, or otherwise become aware of, the decision.
These are strict statutory deadlines. Although the Federal Court can grant an extension of time in special circumstances, an extension should never be assumed.
If you have recently received a refusal, it is therefore important to obtain legal advice as soon as possible rather than waiting until the deadline is approaching.
What Happens During the Federal Court Judicial Review Process?
The process begins by filing an Application for Leave and for Judicial Review with the Federal Court.
"Leave" means that the Court must first decide whether the case should proceed to a full judicial review hearing. The parties submit written materials explaining their positions, and a judge determines whether leave should be granted.
If leave is refused, the matter does not proceed to a judicial review hearing.
If leave is granted, the Federal Court schedules a hearing. Under the Immigration and Refugee Protection Act, that hearing is generally scheduled between 30 and 90 days after leave is granted, unless the parties agree to an earlier date.
At the hearing, the Court considers whether the immigration decision should stand or whether there is a legal basis to set it aside.
If judicial review is successful, the Court does not normally approve the immigration application itself. Instead, the refusal may be set aside and the application returned for a new determination.
Is Judicial Review Worth It?
There is no one-size-fits-all answer.
A refusal alone does not mean that IRCC made a reviewable error. Sometimes the underlying application simply needs stronger evidence. In other cases, however, the refusal may reveal that important evidence was overlooked or that the officer's reasoning was unreasonable or procedurally unfair.
The first step is therefore to determine why the application was refused and whether the problem lies with the application itself or with the way IRCC made its decision.
Because the Federal Court filing deadline may be as short as 15 days, that assessment should happen quickly.
Final Thoughts
Receiving an IRCC refusal can be frustrating, but you may still have options.
Depending on your circumstances, the appropriate next step may be to prepare a stronger application, challenge the refusal through judicial review, or consider another immigration strategy altogether.
If you recently received an IRCC refusal, connect with our immigration team here for an immediate legal evaluation. We can review the decision, assess whether there may be grounds for judicial review, and help you understand your options before the applicable Federal Court deadline expires.