Immigration and Refugees Law
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Should you ask IRCC to reconsider a refusal or go to Federal Court? A reconsideration request asks the same office to take a second look at its decision; judicial review asks the Federal Court to decide whether the decision was lawful. The two are not alternatives on the same clock: asking for reconsideration does not stop the strict deadline to file for judicial review under section 72 of the Immigration and Refugee Protection Act (IRPA). Many applicants lose their right to go to court while waiting for a reconsideration answer. Pax Law Corporation helps applicants choose the right route—or pursue both—before the deadline expires.
| Reconsideration Request | Judicial Review | |
|---|---|---|
| Who decides | IRCC (usually the same office) | A judge of the Federal Court |
| Legal basis | Officer’s discretion to reopen a decision (Kurukkal v Canada, 2010 FCA 230) | IRPA ss 72–74 |
| Deadline | No fixed statutory deadline, but delay weakens the request | 15 days (decisions in Canada) or 60 days (decisions outside Canada) |
| Obligation to respond | IRCC is not required to reconsider | The Court must decide leave once the record is complete |
| Outcome if successful | The decision may be reopened or changed | The decision is set aside and sent back for redetermination |
A reconsideration request is a written submission asking IRCC to reopen a decision it has already made. In Kurukkal v Canada (Minister of Citizenship and Immigration), 2010 FCA 230, the Federal Court of Appeal confirmed that immigration officers have discretion to reconsider their decisions in appropriate circumstances. However, it is a discretion, not a duty. IRCC may decline to reconsider, and may simply not respond.
Reconsideration tends to work best for clear errors on the face of the file—for example, the officer overlooked a document that was properly uploaded, misread a date, or applied the wrong program requirement.
Judicial review is a court proceeding in which the Federal Court examines whether an immigration decision was reasonable and procedurally fair. It is a two-stage process: the applicant must first obtain leave (permission), and only then does the case proceed to a hearing. The Court does not substitute its own decision; if the applicant succeeds, the matter is usually returned to a different officer for redetermination.
The deadline in IRPA s 72(2)(b) runs from the date you are notified of, or otherwise become aware of, the original decision. A pending reconsideration request does not pause that deadline. If you wait for IRCC’s answer and the deadline passes, you will need to ask the Court for an extension of time, which is discretionary and not guaranteed. The Federal Court has sometimes refused to treat the pursuit of other remedies as an adequate explanation for delay (for example, Singh v Canada (Citizenship and Immigration), 2021 FC 93), although in other cases an unsuccessful reconsideration attempt formed part of a reasonable explanation on the particular facts (Berlin v Canada (Citizenship and Immigration), 2011 FC 1117).
If IRCC later refuses to reconsider, that refusal may itself be a separate decision that can be reviewed—but the Court will generally only examine whether the refusal to reconsider was reasonable, not the merits of the original refusal.
Yes. A common strategy is to file an application for leave and judicial review within the deadline and, where appropriate, also send a reconsideration request. If IRCC agrees to reconsider and issues a favourable decision, the court proceeding can be discontinued. Filing in court protects your rights while the request is considered.
No. The judicial review deadline continues to run from the date you learned of the original decision.
No. Officers have discretion to reconsider but no obligation to do so.
As a general rule, no. The Court reviews the decision based on the evidence that was before the officer, subject to narrow exceptions.
Received a refusal? Contact Pax Law Corporation promptly so we can assess reconsideration and judicial review options while your deadline is still open.
The information presented is for informational and educational purposes only and may not be accurate. This information does not replace getting legal advice from a qualified, practicing lawyer. If you are facing a legal dilemma, you should make an appointment and consult with one of our licensed and practicing lawyers.
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