Most of the Canadian immigration legal world ticks away, with nary a thought of going to court. That’s the way it should be. If every government application wound up before a court ... Yes, I know, not a pretty notion.
But the problem with that reality is that when legal issues do need to go to court, it can be hard to spring into action. It can be difficult to decide if court is the best or even a possible option. It can be challenging to decide what grounds to plead before a court. And it can be especially tricky to find counsel to take on, put together, and file your case before the expiry of the deadline. This is especially so with immigration matters.
As an immigration lawyer who goes to court a lot, here are a few of my top tips on what Immigrants (and the consultants and lawyers who help them) need to know about the Federal Court process of reviewing immigration decisions.
1. JUDICIAL REVIEW IS ONLY AVAILABLE IF YOU'VE EXHAUSTED ALL RIGHTS OF APPEAL
I used to be plenty confused in law school over the difference between a "judicial review" and an "appeal." They both seek the same thing: the overturning of a lower court or official decision. So why the different names?
I eventually learned it's because appeal rights are fundamentally based on statute. Meaning, if Parliament has written somewhere that your client can appeal an adverse decision of a particular type to some higher body, then that's the way to go. But if you can't find a right of appeal anywhere in the legislation, you might be stuck with a decision you can't live with. Enter the concept of judicial review.
Judicial review is fundamentally concerned with natural justice and procedural fairness, based on the principle that even if you can't appeal, if you're suffering a true injustice some Superior Court in Canada should be able to help you out. In the case of immigration, that's the Federal Court.
The formal concept of judicial review is just a codification of the Royal prerogative writ extraordinary remedies of certiorari (which quashes a lower decision), mandamus (which forces a lower official to do something), prohibition (which stops a lower official from doing something), plus the less commonly cited habeas corpus and quo warranto writs, all of which are mentioned at s. 18 of the Federal Courts Act as being incorporated into judicial review.
Lawyers and non-lawyers alike can get tripped up by attempting to bring premature judicial review applications when there are outstanding rights of appeal that must be utilized first. You must carefully assess - preferably in conjunction with legal counsel- whether a JR is available as a measure of last resort.
2. THE FEDERAL COURT IMMIGRATION JR DEADLINE IS CRAZY SHORT
How’s 15 days from the date of the challenged decision for short! And you might have already lost half of that with mailing delays from the IRCC or IRB.
It’s no secret this brevity was an intentional political move to make it very difficult for those with legitimate immigration problems to seek court relief. Don’t blame the Federal Court - it didn’t draft the Immigration and Refugee Protection Act - blame the politicians. Though the normal judicial review limitation period of 30 days in the Federal Courts Act to seek JR for other kinds of cases isn’t much better. The only way to tackle a 15 day deadline is to be ready to go BEFORE you get a negative decision. Start sketching out the Notice of Application for judicial review, figure out the likely grounds, find a lawyer. Just in case.
And don't count on the longer 60 day deadline for immigration judicial review "in the case of a matter arising outside Canada" being applicable. Do you really want to bet your future on arguing the difference between "the case of a matter arising in Canada" (15 days) and "the case of a matter arising outside Canada" (60 days)? If you are now in Canada, or were in Canada, or something was done or not done in Canada, the 15 day deadline might apply, even if an application was filed outside Canada. Sure, it also might not apply, but gambling the entire success of the case on how the Federal Court defines where the matter arose is foolish if you can possibly meet the 15 day limit. Of course if you've already missed it you might need to argue that only the 60 day period applies.
Be aware that it's possible to petition the court in extenuating circumstances for an extension to the 15 day (or 60 day) JR limitation period, but you need a very good reason to have missed the deadline, you can't have missed it by much, and you'll need very strong grounds for review which engage the sympathy of the Court.
3. THE ODDS OF SUCCEEDING ON AN IMMIGRATION JR ARE REASONABLE
As of 2016 the government stats (http://cas-cdc-www02.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Statistics/statistics_dec16) say 5313 immigration cases were commenced before the Federal Court (3538 of which didn’t involve refugee applications). That’s more than the entire rest of the Federal Court’s workload combined.
By comparison, there were only 338 intellectual property cases and 121 admiralty cases, both traditional mainstays of the Court. And you can add to the immigration numbers another 454 citizenship cases, which by themselves almost outclass the IP and admiralty cases. It's rarely talked about, but the popularity of migration to Canada has turned the Federal Court largely into an immigration and citizenship court.
Of those 5313 immigration cases, the Federal Court granted leave to proceed with a judicial review in 1258 cases, a rate of 24%. That rate of success is almost identical to the typical 25% rate of success for civil appeals in other courts, like those before the Tax Court of Canada or the Court of Appeal for Ontario.
If you consider that many of those 5313 may have been self-represented without lawyers, some were hopeless cases, and some were abandoned, the true rate of success where a plausible argument for review existed and a lawyer was involved could in fact be far better than 25%. Those are actually quite good odds.
Although it's true that immigration JRs supposedly involve a two stage process, where even if you’re granted leave to proceed with a JR you might still lose the JR argument on the merits, in reality you’ve likely got a far better than 50-50 shot if you get leave because increasingly the Minister simply consents to immigration JRs that get leave, prior to the Court hearing the JR, perhaps in order to avoid a bad precedent, or at least to avoid wasting lawyer and court resources.
Why not consent to good arguments before leave is granted? Having worked for years in the Department of Justice, I can tell you that I found in many parts of government the most popular decision is no decision at all (because you're apt to take flak for sticking your neck out). Thus the "let the Court decide" attitude may be the politically safest course of inaction, where DOJ requires direct instructions from the IRCC who is Justice's "client" in order to consent, and it proves very difficult to obtain such instructions.
4. JRs CAN BE HARDER TO SUCCEED ON THAN APPEALS
Notwithstanding the encouraging rates of leave being granted by the Federal Court for immigration JRs, and Ministerial consent after leave, you need to know that the burden an applicant faces on a JR can be harder to meet that that faced by an appellant in a traditional appeal. With an appeal, you usually only need to show an error of law, or mixed fact and law, that could have affected the result in the case. With a JR, there's a constant tension in the jurisprudence between whether the standard of review is “reasonableness” or “correctness.” I’ve never understood the debate, and I’m a constitutional lawyer who spends a lot of time thinking about such things. In theory the standard leads to results like: “they got it wrong below, it was incorrect, but it was still reasonable, so I’m not going to do anything about it.” Make any sense to you?
There are lots of academic papers out there on this reasonableness-correctness distinction. Though the debate is perhaps best summed up by a concise Tweet I recently saw one lawyer (Jason Morris) Tweet in response to a BadLegalLLP Twitter remark: “Correctness is what we call the standard of review when a) the lower court messed something up, and b) we are not okay with letting it slide this time.”
As someone seeking judicial review, you need to know that the more errors you can identify in the lower adverse decision to be challenged, the more serious those errors are, and the greater the impact of the errors on the rights of the applicant, the better the chances of success on a JR. Since JRs rely on legal precedent, you should also keep your eye out for useful legal precedents on CanLII within the Federal Court (www.canlii.org/en/ca/fct) and IRB (www.canlii.org/en/ca/irb) body of jurisprudence, where individuals with similar facts were successful.
5. ONLY LAWYERS WELCOME
Only lawyers can represent people before the Federal Court. Why? This is simply one of those just the way it is legal monopoly kind of things, that also applies in all other Superior Courts in Canada.
Litigants can represent themselves without any lawyer involvement, but I don’t recommend it. A Federal Court JR is legally very technical, and very unlike the small claims courts of Canada which encourage self-reps, or even family courts which tolerate them. Certainly at the IRB there are lots of self-reps, some of whom might succeed because it's an in-person process focussed much more on the facts than the law. At the Federal Court it’s all about the law.
6. JR GEOGRAPHY DOESN’T MATTER
You can file an immigration application for leave to bring a JR at any Federal Court Registry found throughout Canada, regardless of where the applicant resides or the Ministerial or IRCC decision was made. Since all Federal Court judges are required to live in Ottawa, you might get a faster hearing date by filing there. Plus that is where the Court’s principal Registry is located, although electronic filing makes the actual location of the Registry somewhat irrelevant. Since JRs are largely paper processes not requiring live witnesses (unlike IRB hearings), you should probably just pick a lawyer you are comfortable with, and let that lawyer pick the place of the JR.
7. FLAT BLOCK FEES POSSIBLE BUT NOT ALL JR FEES CREATED EQUALLY
Unlike civil trial slug fests involving solely private litigants in other Superior Courts dealing with family or commercial disputes where unpredictable hourly legal fees are the norm, for Federal Court judicial reviews some lawyers (including me) can offer all-inclusive block flat fees because the amount of work and the likely government response can be somewhat anticipated in advance. This introduces a degree of predictability and affordability in legal fees that can be wholly absent from other types of litigation.
However, you need to be aware that not all Federal Court immigration judicial review legal fees are created equally. I've been litigating cases for 23 years, and done hundreds of trials and appeals, including appeals at the Supreme Court of Canada. All judicial reviews or appeals consume a lot of lawyer time to do a good job and obtain an optimal outcome.
For non-immigration JRs before the Federal Court and provincial Superior Courts, I find most lawyers of similar experience and skills charge roughly similar fees for such JR work, perhaps within a range of about 1/3 higher or lower depending on who you call. This relative similarity of fees makes sense, since ultimately even block flat fees are based on time required to be spent on a case. If lawyer hourly rates are somewhat similar, then their block fees should also be similar.
If you figure that a Federal Court JR for immigration or any other kind of matter requires a day in court to argue, plus several full or part days to prepare a detailed application record, draft a persuasive factum of written legal argument, research the authorities to prepare a compelling casebook, negotiate with Department of Justice counsel, and coordinate with the Court Registry, you can see that a properly prepared JR is really a lot more work than pretty much any kind of non-litigious immigration application like a spousal sponsorship or Express Entry. Additionally, more lawyer time as compared to law clerk time is usually required to be devoted to an immigration JR than is the case for non-litigious immigration applications.
Plus a Federal Court immigration JR requires even more work than a normal JR, because you’re fighting two battles: the first for the Court to grant leave to bring the JR, the second to argue the merits of the JR itself. Although the first stage is entirely a paper process, so there won’t be any day in court, there will still be lots of prep that can only partly be recycled later for the JR itself if leave is granted.
However, having researched the issue I’ve noted a strange trend where relatively similar fees are charged by immigration lawyers - myself included - for immigration application paper processes like spousal sponsorships or Express Entry, but ridiculously low fees are sometimes charged for immigration JRs. All JR work is time based, so I can only conclude that very minimal time is being spent on their preparation. Much like the car that seems to be too good a deal to be true, beware Federal Court JR fees that are possibly even lower than an immigration paper application's fees, and question what those super low fees really get you. You may need to decide: do I prefer to save a few dollars, or do I prefer to stay in Canada.
Gordon S. Campbell is an immigration lawyer who represents clients throughout Canada before the IRB, Federal Court, Federal Court of Appeal and Supreme Court of Canada. He previously served as counsel to the IRCC, CBSA and with the Federal Prosecution Service. Lean more at www.compleximmigration.ca.