I am presently in the midst of the judicial review process. It is quite different than the CIC process itself because it is a
bona fide legal process, complete with formalities, rigid time lines and a strong reliance upon
case law.
There are a couple of documents that I found useful when considering judicial review:
- Federal Court of Canada's guide to Immigration cases (
http://cas-ncr-nter03.cas-satj.gc.ca/fct-cf/pdf/Immigration_practice_guide_e.pdf)
- ENF 9 ("Judicial Review") the enforcement manual on the judicial review process (
http://www.cic.gc.ca/english/resources/manuals/op/op22-eng.pdf)
- OP 22 ("Judicial Review") the outland processing manual on the judicial review process (
http://www.cic.gc.ca/english/resources/manuals/op/op22-eng.pdf)
- CP 8 ("Appeals) the appeals for citizenship process covers judicial review as well (
http://www.cic.gc.ca/english/resources/manuals/cp/cp08-eng.pdf)
-
Baker v Canada - the primary case with respect to the use of judicial review, particularly immigration with respect to procedural fairness (
http://en.wikipedia.org/wiki/Baker_v._Canada_(Minister_of_Citizenship_and_Immigration))
Here is a good bit of text explaining the nature of judicial review:
Source:
http://www.immconsultant.net/judicial-review
If you find yourself in a situation in which you would like to seek judicial review, I would suggest looking for court decisions that are similar in nature to your own case. To do so, review Federal Court of Canada decisions (see
http://decisions.fct-cf.gc.ca/en/index.html which allows you to do searches on similar cases). What I found in my case was that there were only a few attorneys successfully arguing judicial review cases in the area of concern to me (in my case, excessive demand medical inadmissibility.) This is a
critical part of the process - there are plenty of attorneys out there, but very few have real experience arguing before the court and meeting with success.
Most judicial review applications are rejected. Only around 20% of applications are granted review. While this sounds discouraging, in fact in my own informal review of applications, most applications are from refused refugee claims - and this means they have already had a hearing (or multiple hearings) before the IRB. However, for an FSW application, Judicial Review is usually the
first real independent review of the procedure used and thus they do tend to have a higher rate of being granted - still, my informal review suggests it is less than 50% being granted.
The other thing I have noted is that many applications are never completed. The applicant files their notice of application, the visa office sends the record to the court, the respondent (Justice Canada on behalf of CIC) submits a notice of appearance, and then the applicant never files their application record. These will eventually be dismissed by the court (usually a day or two after the registry sends the case to the Court for determination.) After the applicant files an application record (affidavit and memorandum of law and authorities) Justice Canada will either assent to the judicial review (rare, but it does happen when the Justice Canada folks decide the process was broken) or will file their own affidavit and memorandum of law and authorities in opposition to the application for judicial review. Ten days after the respondent's filing (Justice Canada on behalf of CIC) the applicant submits the "reply" to the Justice Canada arguments.
In many cases, the applicant never submits a reply. In most of those cases, the Court dismisses the application, although I have seen some cases where the Court still granted judicial review.
Eventually the Registry sends the file to the Court for disposition and the waiting begins. MOST applications are granted or rejected within a few weeks. My application took over three months before it was granted. One reason for a potentially longer delay is that the Court is bound by stringent timelines - they must set a hearing date
no later than 90 days from the order granting judicial review. In virtually every case I've seen in the docket system, the hearing date is set 90 days from the date of the order. I've been told that this is due to the scheduling requirements of the Courts (limited courtrooms and judge availability). I've not found anything that discusses how the FCC assigns judges to specific cases, although I have a sense (from reviewing cases) that the more complex cases tend to be referred to the more experienced judges.
If your case is granted, the Court issues a scheduling order. This order sets out the timing for the tribunal record (the notes from the visa office explaining their decision), the applicant's and respondent's affidavits, the applicant's and respondent's additional memorandums of law and authorities, the cross-examination of affidavits (and when the transcripts of said cross-examinations must be filed) as well as the actual hearing date and location. It does not mention the judge that will oversee the hearing.
A grant of judicial review indicates the court sees potential merit in the application - that you now have a genuine opportunity to make your case. The attorneys are allowed to submit additional material in support of their positions. If there are other interested parties they may choose to request the right to intervene - this is unusual in general, but tends to happen in cases with Charter challenges or policy issues.
In general, oral arguments seldom make the real difference in a case, although they do give the judge an opportunity to hear each side's perspective. In some cases, such as when it is very clear-cut, the judge may rule from the bench and the parties will know the decision at the end of the hearing. However, in most cases the judge will "reserve judgment" which means the parties must wait for the decision.
The decision, which is always issued in writing, even if the judge announces a decision at the hearing, can be submitted at any point in time after the oral arguments. This can be many months. As an example, IMM-3764-11 (2012 FC 507) was argued on January 12, 2012 and the decision was entered on May 2, 2012. While longer than seems normal, this is not considered to be an unreasonable amount of time.
The attorney's for either side may present one or more questions for certification to the Judge. If a question is certified, it is grounds upon which either party may appeal. If no question is certified, the decision of the Federal Court of Canada is not generally subject to appeal. Questions must be of general interest (e.g., they are not specific to the case, but rather relate to broader policy implications of a decision.)
An example of appeals with which I'm familiar is the relatively recent Sapru decision (2010 FC 240 Date: March 2, 2010 and 2011 FCA 35 Date: February 1, 2011). The Federal Court ruled against Sapru, but certified a question, and Sapru was successful before the Federal Court of Appeals. This is also reasonably representative of the time frames involved: rejection June 11, 2009, FC decision March 2, 2010 (9 months) and then FCA decision 11 months later (February 1, 2011). Mr. Sapru submitted his application on June 27, 2002.
Note: in general, even if you are victorious before the Federal Courts, your CIC application is not granted - it is remanded back to CIC for re-determination. It is
not sent back to the same visa officer. In some cases it may not even be sent back to the same visa office.
My own case was filed January 10, 2012, and was completed in early April, with the registry forwarding the file to the Court on April 17, 2012. Judicial review was granted on July 19, 2012 with a hearing date of October 17, 2012 (exactly 90 days later). It invokes both arguments of specific issues in procedural fairness (even going so far as to point to a different decision by the same medical officer reaching opposite conclusions as to what was important, an inconsistency that does not reflect well on CIC,) as well as two charter arguments (one apparently novel, relating to separation of powers, and the other relating to equal protection.) Whether the Court finds any of them persuasive remains to be seen. Thus far Justice Canada has not submitted any materials in opposition to any of the originally cited grounds, instead focusing on my ability to apply in a separate category (in which excessive demand is not an issue).
