Judicial Review
Judicial review is a court process in which the Federal Court of Canada examines whether an immigration decision was made lawfully, reasonably and fairly. It is not a new application: if the Court finds a reviewable error, it usually sets the decision aside and sends the matter back to be decided again.
Contents: Legal basis · How the process works · Grounds and standard of review · Possible outcomes · Related terms · Practical tips · FAQ
Legal basis
Under section 72(1) of the Immigration and Refugee Protection Act (IRPA), judicial review by the Federal Court of any matter under the Act — a decision, determination or order made, a measure taken or a question raised — is commenced by an application for leave (permission) to the Court, subject to section 86.1.
Section 72(2) sets the basic rules:
- Appeals first: the application may not be made until any right of appeal provided by the Act is exhausted (s. 72(2)(a)).
- Deadline: the application must be filed and served within 15 days for a matter arising in Canada, or within 60 days for a matter arising outside Canada, after the day the applicant is notified of or otherwise becomes aware of the matter (s. 72(2)(b)).
- Extension: a judge may allow extra time, but only for special reasons (s. 72(2)(c)).
- Summary decision: the leave application is decided without delay, in a summary way and, unless a judge directs otherwise, without personal appearance (s. 72(2)(d)).
- No appeal of the leave decision: no appeal lies from the Court’s decision on the leave application or from an interlocutory judgment (s. 72(2)(e)).
The Court’s remedies and the grounds for relief are found in section 18.1 of the Federal Courts Act, and the procedure is governed by the Federal Courts Citizenship, Immigration and Refugee Protection Rules.
How the process works
Immigration judicial review has two stages: the leave stage, where a judge decides whether the case may proceed, and the judicial review stage, where the Court decides whether the decision should be set aside.
After filing the application for leave, the applicant must “perfect” it under Rule 10 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules. If the application states that the written reasons were received, the applicant’s record is due within 30 days after filing. If the reasons were not received, Rule 9 requires the Registry to ask the decision-maker for them, and the 30 days run from receiving the reasons or a notice that no reasons were given or recorded.
The applicant’s record contains, in order, the application for leave, the decision, the reasons (or the Rule 9 notice), any anonymity request, supporting affidavits verifying the facts, a memorandum of argument, and a statement of the language of the hearing. It must be served on each respondent who has filed a notice of appearance and filed with proof of service.
Grounds and standard of review
Under section 18.1(4) of the Federal Courts Act, the Court may grant relief if the decision-maker:
- acted without, beyond or refused to exercise its jurisdiction;
- failed to observe natural justice, procedural fairness or another required procedure;
- erred in law;
- based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it;
- acted, or failed to act, because of fraud or perjured evidence; or
- acted in any other way contrary to law.
In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court of Canada held that when a court reviews the merits of an administrative decision, the starting point is a presumption that the standard is reasonableness. That presumption can be rebutted where the legislature prescribes a different standard or provides a statutory appeal, or where the rule of law requires correctness — for constitutional questions, general questions of law of central importance to the legal system as a whole, and questions about the jurisdictional boundaries between administrative bodies. Questions of procedural fairness are analysed separately from this merits framework.
Possible outcomes
Section 18.1(3) of the Federal Courts Act allows the Court to quash or set aside a decision and refer it back for determination with directions, to declare it invalid or unlawful, or to order a tribunal to do something it has unlawfully failed or refused to do or has unreasonably delayed doing — the basis of mandamus.
The Court does not ordinarily approve the underlying immigration application itself. In Vavilov (paras. 141–142), the Supreme Court said that where a decision cannot be upheld, it will most often be appropriate to remit the matter so the decision-maker can reconsider it with the benefit of the Court’s reasons; the new decision may reach the same or a different result. In Rafique v. Canada (Citizenship and Immigration), 2026 FC 658, the Federal Court noted that it typically remits immigration cases for redetermination by a different decision-maker, and that deciding the matter itself is exceptional.
A further appeal to the Federal Court of Appeal is possible only if the judge, in rendering judgment, certifies that a serious question of general importance is involved and states the question (IRPA s. 74(d), subject to s. 87.01).
Practical tips
- Record the date. The deadline runs from when you were notified of or became aware of the decision, so keep the email, letter or portal message.
- Check for an appeal right first. If the Act gives you an appeal, it must be used before judicial review.
- Do not count on an extension. Extra time is discretionary and requires special reasons.
- Focus on errors, not just disagreement. The Court asks whether the decision was lawful, reasonable and fair under the grounds in section 18.1(4).
- Keep evidence organised. The record must include affidavits that verify the facts relied on.
Frequently Asked Questions
What is judicial review in simple terms?
It is a request asking the Federal Court to examine whether an immigration decision was made lawfully, reasonably and fairly, and to set it aside if it was not.
How long do I have to apply for judicial review?
Under IRPA s. 72(2)(b), 15 days for a matter arising in Canada and 60 days for a matter arising outside Canada, counted from the day you were notified of or otherwise became aware of the decision.
What is leave?
Leave is the Court’s permission to proceed. The leave application is decided in a summary way and, unless a judge directs otherwise, without anyone appearing in person.
Is judicial review the same as an appeal?
No. Any appeal available under the Act must be used first. Judicial review examines whether the decision was legally made; it does not usually end with the Court granting the application itself.
What happens if the judicial review succeeds?
The Court usually sets the decision aside and sends the matter back to be decided again, typically by a different decision-maker. The new decision may be the same or different.
What if I never received written reasons?
Say so in the application for leave. The Registry will request the reasons, and you then have 30 days after receiving them, or a notice that none exist, to file your record.
Can the Federal Court’s judgment be appealed?
Only if the judge certifies that a serious question of general importance is involved and states the question, under IRPA s. 74(d).
Book a consultation
Pax Law Corporation offers immigration and refugee consultations online or by phone. Book in Vancouver (+1 604-767-9529) or Book in Toronto (+1 416-447-4862).
This entry is for general information only and is not legal advice. For advice about your situation, please book a consultation with a lawyer.
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