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JUDICIAL REVIEW LAWYER

Canada's immigration system plays a pivotal role in shaping the nation's diversity and inclusivity. However, in some instances, individuals find themselves in need of recourse when faced with decisions that impact their immigration status. This article explores the concept of judicial review in the context of immigration matters in Canada, shedding light on the process, grounds, and remedies available to those seeking legal redress.

UNDERSTANDING JUDICIAL REVIEW

Judicial Review is a legal process through which individuals or organizations can challenge the decisions, actions, or omissions of administrative bodies, such as government agencies, boards, or tribunals, in a court of law. It is a mechanism designed to ensure that administrative authorities act within the confines of the law, adhere to procedural fairness, and stay within the limits of their legal authority.

Judges can review decisions made by Administrative bodies. These decisions involve matters like legal rights, eligibility for benefits, or licenses. The Judicial Review Procedure Act, in Section 1, outlines the types of decisions that can be reviewed by the court. It’s important to note that decisions made by private individuals or entities are not eligible for this type of review.

WHEN CAN AN APPLICATION BE MADE

According to section 5(1) of the Judicial Review Procedure Act, any application seeking judicial review of an administrative decision must be initiated within thirty days from the decision’s date. Nevertheless, under section 5(2) of the same Act, the Court retains the discretion to extend this timeframe if clear grounds for relief exist, and such an extension wouldn’t result in substantial prejudice to any party.

In cases where the right to request a reconsideration of the decision or to appeal exists, the Court may choose to defer the judicial review application until the completion of this internal process. Generally, the Court prefers that decisions be conclusively resolved before entertaining them for judicial review.

REMEDIES AVAILABLE UNDER JUDICIAL REVIEW

In an application for judicial review, a party requests a three-judge panel from the Divisional Court to modify or annul a decision made by an administrative body. This request is justified when the party can demonstrate that an error occurred, necessitating intervention by the Court. It’s important to note that judicial review is not a platform to re-litigate the case; instead, its purpose is to illustrate instances where the decision-maker inadequately exercised its decision-making authority.

When contemplating whether to pursue judicial review, it is crucial to grasp the potential remedies that the Court can provide. The Judicial Review Procedure Act, under Subsection 2(1), outlines several remedies available during the judicial review process. These remedies include mandamus, prohibition, certiorari, a declaration, or an injunction, and their application is at the discretion of the Court.

  • Mandamus: Compelling Action
  • Mandamus entails an order compelling a party to perform a specific action. If the Court determines that a decision-maker has a duty but failed to fulfill it, mandamus may be issued to enforce that obligation.

  • Prohibition: Halting Unlawful Actions
  • Prohibition serves to prevent a decision-maker from continuing an unlawful process or action. If the Court finds that a decision-maker lacks authority or should refrain from a particular action, it can prohibit the decision-maker from proceeding.

  • Certiorari: Nullifying the Decision
  • Certiorari involves an order nullifying the decision under review. If the Court concludes that the decision is untenable due to reasons such as a lack of jurisdiction or procedural unfairness, it may quash the decision. In such cases, the Court may remit the matter to the decision-maker or, in exceptional circumstances, make its own determination.

  • Declaration: Clarifying Legal Positions
  • A declaration is a statement by the Court regarding the legal positions of the parties or the applicable law. It may clarify rights or assess whether the decision-maker acted within its legislative authority.

  • Injunction: Preventing Harm or Protecting Rights
  • An injunction is a Court order preventing or prohibiting a party from taking certain actions. It may be issued to avert harm or safeguard legal rights, providing an additional tool for the Court in delivering justice.

PROCESS

  • Notice of Application
  • The commencement of judicial review involves submitting a “Notice of Application for Judicial Review” (Form 68A) to the Divisional Court. This notice must be served on the Attorney General of Ontario. Additionally, it is necessary to serve the Notice of Application on the decision-maker who utilized the statutory power, as well as any other individuals involved in the initial hearing.

  • Motion for Stay
  • If the applicant seeks the Court to suspend the decision rendered by the administrative body until the Court reviews the application for judicial review, an application for a “stay” of the decision must be made. In the Divisional Court, this involves submitting a motion to obtain an order that temporarily prevents the original decision from being implemented until the application is conclusively determined.

  • Application Record
  • After the decision maker files a Record of Proceedings, the applicant is required to fill an Application Record. Once served on the Respondent, the Applicant must file it within 30 days along with the Factum. In the event that the Applicant fails to deliver the Application record and factum, and file the certificate of perfection  till the lapse of 1 year from the filing of notice of application, the Respondent may move for a dismissal on the ground of delay. The Applicant must file the pending materials within 10 days of receiving the Notice of Dismissal.

  • Factum
  • The Applicant is also required to file a factum which shall not exceed the limit of 30 pages in length. This must be compiled with a book of authorities if precedents or other legal texts have been referred to or cited in the factum.

  • Certificate of Perfection
  • When all of the above have been filed, the applicant is required to complete a certificate of perfection confirming that the requisite material has been filed by the applicant.

  • Notice of Listing for Hearing
  • Following the completion of the certificate of perfection, the Registrar places the application on the hearing list, following which they send Notice of Listing for Hearing (Form 68B) to the parties advising on the subsequent steps to be followed.

  • Hearing
  • During the hearing of the application, the involved parties will be able to present their arguments before a three-judge panel of the Divisional Court. The oral hearing provides an occasion for each party to articulate their stance on the key issues, emphasizing that it is not meant for a mere recitation of the content found in the factums. The judges may engage in questioning regarding the arguments presented. The proceedings commence with the applicant’s submissions, followed by oral submissions from the respondent(s). While the applicant is allowed reply submissions, it’s crucial to note that this phase is not an opportunity to reiterate prior arguments; instead, it should solely address new matters introduced by the respondent.

IMPORTANCE OF LEGAL REPRESENATATION

The intricate nature of administrative law and the specific procedures involved in judicial review demands a nuanced understanding of legal principles, which legal representatives bring to the forefront.

A skilled lawyer not only helps in formulating a compelling case by identifying and articulating legal arguments but also ensures that the procedural requirements are meticulously met, avoiding potential pitfalls. Moreover, legal representation becomes particularly crucial when facing government agencies or administrative bodies with substantial resources and legal expertise. The lawyer-client relationship empowers individuals to navigate the judicial review process with confidence, ensuring that their rights are protected, and the principles of fairness and legality are upheld within the Canadian legal system. Overall, legal representation stands as an indispensable asset in judicial review proceedings, facilitating access to justice and safeguarding the fundamental principles that underpin the Canadian legal framework.

CONCLUSION

In conclusion, the article underscores the vital role of judicial review in Canada’s immigration system, offering individuals a crucial mechanism to challenge administrative decisions. This legal process ensures adherence to principles of justice and fairness, contributing to the nation’s diversity and inclusivity. Emphasizing the intricacies of the judicial review process, including specific timelines, available remedies, and the significance of legal representation, it becomes evident that this system acts as a safeguard against potential inadequacies in decision-making. Through judicial review, Canada reaffirms its commitment to upholding the rights and fairness of individuals within the immigration framework, underscoring the pivotal role of legal recourse in shaping a just and inclusive society.
Kozyrev Law is committed to providing unparalleled legal services with a focus on excellence, integrity, and client satisfaction. Our dedicated team strives to deliver comprehensive and tailored solutions to meet the unique needs of our clients. We pride ourselves on maintaining open communication, ensuring that our clients are well-informed and confident throughout the legal process. At Kozyrev Law, we understand the importance of personalized attention, and our commitment to achieving optimal outcomes for our clients is unwavering. Whether navigating complex legal issues or seeking expert advice, clients can trust Kozyrev Law for reliable, efficient, and client-centric legal services.

Note: The information presented in this article is not intended to constitute legal advice. It is recommended to refer to official government publications and guidelines for accurate and up-to-date information. For obtaining legal advice tailored to the specific circumstances of your case, it is advised to consult with a qualified professional.

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