When a Notice of Application has been filed, the Applicant has 30 days in which to serve and file an affidavit (or affidavits) in support of the application. The Respondent then has 30 days in which to serve and file their affidavit evidence. The Respondent’s affidavit materials usually consist of an affidavit from the officer or someone in the office that has knowledge of the file.
The Applicant’s affidavit must be based on actual knowledge of the Applicant. Although affidavits that are used in ancillary proceedings (such as applications for extensions of time) can be based upon belief, this is not true in affidavits in support of original actions. If an affidavit is based upon hearsay or belief (as opposed to knowledge), the Respondent can, and often does, bring a motion to have the affidavit struck out.
Certain applications for leave for judicial review are based upon what occurred or did not occur during an interview with an officer. It is extremely important that clients, who are unaccompanied at the interview, make detailed notes as soon as possible after the interview concludes so that they will be able to furnish as much detail as possible about the interview. A lack of detail in what exactly transpired will be fatal when compared to the affidavit of an officer who has the assistance of detailed notes made at the time of the interview,
The affidavit must give details as to the basis of the attack on the decision. If it does not, the Respondent can bring a motion to have the proceedings struck out as not disclosing a cause of action. The more detailed the evidence, the more chance the application will have of success.
Although the affidavit must be based upon actual knowledge there is nothing wrong with statements such as “I believe that I was dealt with unfairly.” Although technically incorrect, it helps define what the issues are in the application for judicial review.
Relevant documents can and should be attached to the affidavit as exhibits. More than one affidavit can be filed. If someone other than the applicant has relevant information concerning the matter (such as a previous representative or a family member) then additional affidavits should be filed.
Within 30 days (can be as much as 40) of receiving the Reasons the applicant must perfect and file an application record. An application record consists of the following:
- a table of contents;
- a copy of the Notice of Application;
- copies of the affidavit or affidavits;
- a copy of the decision of the visa officer;
- copies of the contents of the file of the visa officer which include all documentation that was before the visa officer when the decision was made;
- a memorandum of legal points to be argued and a list of legal cases or authorities that are being relied upon.
After the application record has been served and filed with the Court, the Respondent has 30 days in which to file their application record. Ten days after the latter filing, the Applicant may file a Memorandum of Reply.