In citizenship and immigration cases, Applicants to the Federal Court do not generally have an automatic right to have their case heard by a judge – they must apply for the leave or permission of the Court to have a hearing. This means that an Applicant must first ask the Court to consider their written arguments and if a judge determines that there is a “fairly arguable case” the decision will be judicially reviewed.

Asking for leave is a four stage process:

  1. Notice – Depending on where the decision was made, an Applicant has either 15 days (for decisions made in Canada) or 60 days (for decisions made outside Canada) to file a Notice of Application for Leave and Judicial Review with the Federal Court registry.
  2. Applicant’s Record – Within 30 days of filing the Notice, an Applicant’s Record must also be filed. This record includes such things as a copy of the negative decision, written arguments as to why leave should be granted and any evidence that the Applicant wishes to rely upon. This Applicant’s Record needs to be served on the Respondent (the Department of Justice) and filed with the Court.
  3. Respondent’s Record – Within 30 days of receiving the Applicant’s Record, the Respondent must file a Respondent’s Record, including their arguments as to why leave should not be granted in the case.
  4. Reply – Within 10 days of receiving the Respondent’s Record, the Applicant has the opportunity to file further arguments in the form of a Reply.

Once all of these documents have been properly served and filed, a judge of the Federal Court will consider the application for leave. This entire stage of the process is done on paper and no Court appearances are generally required. It may be several months before a decision is made.

If leave is granted, the Court will set out all of the deadlines for filing the next set of required documents, including any additional affidavits and written arguments. The Court will also set a date for oral arguments to be made by counsel in front of a judge.

Judicial Review

If leave is granted, the case will be “judicially reviewed” by the Court. A judicial review is different than a traditional appeal. The Court cannot substitute its own decision in the place of the decision made by the immigration officer or the Immigration and Refugee Board. Instead, the Court will send the case back to Immigration, Refugees and Citizenship Canada (or other relevant decision maker) to have a different individual make a new decision in the case.

It is possible that a judge will make a decision on the same day as the judicial review. However, it is more likely that the decision will come in the days, weeks or months following the oral hearing.