Federal Court
Has your Canadian immigration application or appeal been refused? Do you want to challenge the decision to the Federal Court of Canada?
At Bellissimo Immigration Law Group PC, we can help!
We represent clients at each stage of the litigation (sometimes referred to as the “appeal” at the Immigration and Refugee Board level) including seeking leave and judicial review at the Federal Court and further steps in rare cases to the Federal Court of Appeal, and the Supreme Court of Canada.
At Bellissimo Immigration Law Group PC, we pride ourselves on being one of the leading law firms that deal with refusals of immigration applications or other negative immigration-related decisions, including family class applications, deportations, residency cases, citizenship, and refugee/protected person matters. In this section, we set out some basic considerations at the Federal Court. We have been part of many important decisions and have achieved excellent results for many of our clients over the years.
When can I go to the Federal Court?
Section 18.1 of the Federal Courts Act provides the authority to bring an Application for Judicial Review to the Federal Court by anyone who has been directly affected by the matter for which relief is being sought at the Federal Court, including relief from a decision made under the Immigration and Refugee Protection Act (IRPA). The Federal Court may grant relief from a decision in a variety of circumstances, including on the basis that a federal board, commission or other tribunal erred in law or fact (or both) in making a decision, and/or that there was a breach of procedural fairness.
This section also outlines time limits (be aware that time limits are amended in IRPA proceedings, as explained below), the powers of the Federal Court, and on what grounds an application can be brought. For reference, time limits to file the “Notice of Application,” the initiating document for a matter before the Federal Court, must be within 15 days of receipt of the refusal for matters arising in Canada, or within 60 days for matters arising outside of Canada. In matters related to the Citizenship Act, the Notice of Application must be filed within 30 days after being notified or aware of the matter.
It is important to be aware of and keep track of these timelines, as once they are missed, a Notice of Application can only be filed with an Extension of Time request. These requests can be challenging to succeed upon and must include a reasonable explanation for the delay.
What are the steps for filing at the Federal Court?
The Notice of Application
The filing of a Notice of Application for leave commences review proceedings (the Application for Leave). While previously the Notice of Application had to be served on the Respondent (Minister of Citizenship and Immigration as one example) in person and then re-filed with the Court Registry after service, the Federal Court has since shifted to online filing. This allows for electronic filing of the Notice of Application, and the Court Registry now serves the Notice of Application on the Respondent electronically on behalf of the Applicant. The following information is required to complete the Notice of Application:
- The name of the Applicant;
- The name of the tribunal that made the decision;
- The location of the tribunal. Exact addresses are not necessary and the address can be described as “the Canadian Embassy in China” or the “Canadian High Commission in New Delhi” for example;
- The date that the decision was made. This will usually be the date that the refusal letter is signed;
- The date that the decision was communicated to the Applicant. The Federal Court Act provides that where a decision is sent by ordinary mail, it is deemed to have been received on the 10th day after it was mailed. It is important to advise clients to keep the envelopes or the emails in which the decision arrives because there can be a delay between the date that the letter of refusal was signed and the date that it was mailed. However, most decisions are now provided electronically so the date of the e-mail with the decision attached, for example, would be important to note;
- The Applicant’s visa office file number and unique client identifier (UCI) number;
- Whether the Applicant has received the written reasons for the decision;
- Who prepared the Notice of Application; and
- The grounds upon which the Applicant is seeking to have the decision set aside.
The remedy sought at the Federal Court is outlined in the Application for Leave and for Judicial Review. Generally, when challenging the refusal of an application or dismissal of an appeal, the Court is asked to review the refusal or dismissal issued by a decision-maker, set aside the refusal/dismissal, and order that the matter be referred to a different decision-maker for re-determination. In the case of a Mandamus application, the remedy sought is a Court order specifying a timeline within which a decision-maker must make a final decision. The Federal Court is not able to re-instate or issue immigration status.
After a Notice of Application is filed and served upon the Respondent, the Respondent has 10 days in which to serve and file a Notice of Appearance. There is no special significance to this document other than the fact that if it is not served and filed on time, the Respondent will lose the right to participate in the proceedings or to be notified of further stages of the process.
Affidavits
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. These are incorporated into the Application Record, discussed below. Following this, the Respondent then has 30 days in which to serve and file their affidavit evidence.
The Respondent’s affidavit materials can 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. Still, 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.
While typically no new evidence is permitted through the Federal Court process, there are very limited exceptions to this rule, including in circumstances where “new evidence” (i.e., evidence that was not before the decision-maker at the time the decision was made) can bring attention to breaches of procedural fairness.
The affidavit must also 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 a result of not disclosing a cause of action. The more detailed the evidence, the more chance the application will have of success.
Relevant documents can and should be attached to the affidavit as exhibits, such as an application package, disclosure, or other materials that were part of the proceedings before the refusal/dismissal decision. 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.
Application Record
Within 30 days (though up to an additional 10 days can be added in the case of written reasons being provided in hardcopy through mail) of receiving the written reasons for the decision, the Applicant must perfect and file an Application Record. The Application Record consists of the following:
- A table of contents;
- A copy of the filed Notice of Application;
- Copies of the affidavit or affidavits;
- A copy of the decision and written reasons 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 affidavit(s), if any, and Memorandum of Argument. Ten days after the latter filing, the Applicant may file a Memorandum of Reply.
Granting of Leave
If Leave is granted, and sometimes before Leave is granted, the Court requests the Respondent to produce the Certified Tribunal Record, which should contain the contents of the entire file before the decision-maker at the time the decision was made, as well as the decision and written reasons. the Court Order granting Leave also sets out the date, time, and location (either in-person or via video conference) for the Judicial Review hearing, and the next steps leading up to the Judicial Review Hearing. The Applicant and Respondent each have the option of filing a Further Affidavit and Further Memorandum. The Court sets the matter down (i.e., schedules a hearing) within 90 days of granting Leave, and encourages the parties to consider settlement within the first fifteen days following the Leave Order.
The Further Affidavit and Further Memorandum are critical, as the legal tests for obtaining Leave versus successfully overturning a decision on Judicial Review are different. Both the Applicant and Respondent are also given a time period in which to cross-examine the deponent of the affidavit. After the Respondent’s affidavits are filed, the Applicant has 20 days in which to complete any cross-examinations. The entire court proceeding usually takes between 6 months to a year to conclude.
Judicial Review Hearing
The attendees of the Judicial Review hearing include the presiding Judge, counsel for the Applicant, counsel for the Respondent, and a Court Registry Officer. Observers are generally permitted to attend as well but are not permitted to speak and where the hearing proceeds via video conference, observers must remain muted with their cameras off. Applicants are not required nor permitted to provide testimony or be subject to questioning during the hearing.
Hearings are usually 90 minutes in length, with each side having approximately 45 minutes to present oral arguments in the following order: first, the Applicant or their counsel; second, the Respondent; and finally, the Applicant has the right to reply. The presiding Judge also has the opportunity throughout the hearing to ask questions.
While sometimes a Judge may decide to render their decision immediately at the conclusion of the hearing, most of the time a Judge will “reserve” their decision, meaning they will take additional time to consider the matter before providing their decision in writing to both parties. If the allowed, the Applicant will generally receive the remedy they sought initially as outlined above, though in rare circumstances the Court can vary the remedy to be ordered. If dismissed, the Federal Court proceedings would conclude and the previous decision would stand undisturbed. An appeal to the Federal Court of Appeal is only permitted in very limited situations, for example where there is an important question of law.
Settlement
Throughout the process, either before or after Leave is granted, it is also possible to achieve settlement between the parties. Settlement discussions can be initiated by either the Applicant or the Respondent. Settlement is usually achieved where both parties agree there is merit to the Federal Court application which is likely to be successful if it proceeds to a Judicial Review hearing. Settlement most often occurs after legal arguments have been filed, as this gives both the Applicant and the Respondent the opportunity to consider the issues raised. If settlement is achieved, the settlement offer will set out the conditions of the settlement, which can include the remedy the Applicant initially set out in the Notice of Application, in exchange for discontinuing the Federal Court proceedings.
How can we help?
We have significant experience and have been successful at all levels of immigration-related courts and tribunals in Canada. We can assist applicants hoping to challenge a negative decision by:
- Reviewing the immigration file, the law, including all relevant legislation and case law;
- Applying for records held by Immigration, Refugees, and Citizenship Canada (IRCC), Canada Border Services Agency (CBSA), or other decision-makers through Access to Information and Privacy (ATIPS) requests;
- Collecting all relevant materials related to the client’s immigration history and assessing chances of a successful application at the Federal Court;
- Preparing case strategy;
- Pursuit of all other reasonable and appropriate appeal remedies and all work incidental thereto, including the filing a Notice of Application, supporting affidavits, to cross-examine the visa officer overseas by telephone, highlighting the relevant case law and evidence to support the case;
- Composing legal and factual arguments;
- Other unexpected circumstances, such as motions which can be brought by either party. For example, if the visa officer on cross examination promises a copy of a document but then does not produce a copy or is taking too long, the Applicant would bring a motion at the Federal Court to seek an order to have the officer produce the document.
Please contact Bellissimo Immigration Law Group PC if you require assistance at the Federal Court of Canada.
