FEDERAL COURT JUDICIAL REVIEW & Appeal IMMIGRATION & CITIZENSHIP LAWYER

The Federal Court of Canada and Federal Court of Appeal have jurisdiction to hear challenges to decisions of the Immigration and Refugee Board and the Minister of Immigration, Refugees & Citizenship.

Which court you go to, what test you need to meet for the court to hear your case, and what test you need to meet to succeed in your case are all subject to a myriad of technical rules, depending in part on what kind of IRB or Ministerial decision you're trying to challenge. 

While representing yourself at the Federal Court is in theory possible, it's highly recommended that you retain a lawyer to help you with the technical procedure. 

Why is it Called a Judicial Review Instead of an Appeal?

While the Federal Court and Federal Court of Appeal do hear formal "appeals" or "trials" of some kinds of cases, with immigration and citizenship issues you're mostly stuck with pursuing "judicial reviews" there. There's no good reason to use the five syllable "judicial review" term, rather than the two syllable "appeal" term, other than that someone once upon a time thought it a good idea to invent a different term for an appeal where there are no appeal rights, combined with someone thinking it smart to get rid of independent "prerogative writs" of mandamus, certiorari, prohibition, habeas corpus, and quo warranto, and instead fold them all into a single category of judicial review while designating specialized courts to hear those reviews. 

Much like trying to stamp out a weed infestation, prerogative writs weren't so easily killed off. So they are still explicitly raised now and then before courts of "original inherent jurisdiction," even in immigration and citizenship matters. But most of the time, you'll just ask for judicial review. For the non-lawyers of the world, it suffices to think of judicial review just like an appeal, but with different applicable nuanced rules of court and legal tests for success. 

Why is Leave Required to Bring Immigration or Citizenship Judicial Review to Federal Court?

Because the politicians didn't want to make it easy to challenge government immigration or citizenship decisions is the short answer to the question of why one must seek "leave" before bringing a judicial review in immigration or citizenship before the Federal Court, and no "leave" is required for any any kind of judicial review. 

The reality is that the Federal Court risks being overwhelmed with immigration and citizenship challenges, where now the vast majority of its workload in terms of total numbers of case initiated there each year are indeed immigration or citizenship (over 5000 applications annually for leave to bring a judicial review). So "leave" is a kind of safety valve, where the court attempts to triage the immigration and citizenship cases with those supposedly having the best chances of success moving onto full hearings. 

The problems with the "leave" process is that you don't get an oral hearing unless leave is granted, and judges on the court have widely varying leave grant rate. But putting your best foot forward is your best bet in succeeding on a leave application, meaning that devoting significant lawyer time to the preparation of the application to the court is going to maximize your chances of success. Hiring someone for a quick, cheap job on the leave application will likely lead to you being tossed out of court just as quickly. 

Top #1 Tip for Winning a Federal Court Judicial Review

Combining basic legal argument, with overwhelming credibly supported factual detail, presented in a polished format, will best win the day in a Federal Court immigration or citizenship judicial review - be it at the leave stage, or the substantive JR stage.

Arguing breaches of "procedural fairness" and "natural justice" and citing the case of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 is your best path to success on a Federal Court immigration or citizenship judicial review if you can't think of anything else to say. You'll need to clearly articulate the facts (together with supporting evidence of those facts) of how you believe procedural fairness or natural justice was breached, and ideally you would cite a few more cases beyond Baker in support of your arguments, especially cases with facts similar to your own case, where the court decided in favour of the applicant.

Winning Federal Court immigration or citizenship judicial reviews can involve a fairly simple in legal argument. so long as you present a detailed factual record that demonstrates that "right" is on your side. These cases are more about the facts than the law, so you need to overwhelm the court with credible supported factual detail.

However, form of presentation can also matter as much as substance, so you'll need to carefully study the rules of court to make sure that out of the thousands of judicial reviews Federal Court judges have to review every year, your's doesn't get tossed because it is sloppy or irregular in presentation.