How to Challenge Immigration Decisions
Updated: Oct 21
Whether you have received a negative decision on your visitor's application or your refugee claim, the most common question is if you can challenge that decision. The answer is "YES," but it's not that simple. You can almost always challenge the decision; however, there are few ways to go about it.
In some cases, you do have an option of filing a statutory appeal. It means that with the Immigration and Refugee Protection Act (IRPA), there is an option/procedure to file an appeal that will be heard by the Immigration Refugee Board (IRB). One example would be if you filed a sponsorship application for your spouse your parent, and you received an unfavourable decision, you can file an appeal to the IAD (Immigration Appeal Division). Other appeals are available under the IRPA; however, there are cases when it's not an option. What can you do then?
In cases where you have no statutory appeal, your only option is to file a judicial review application with the Federal Court. Basically, you are asking a judge to look into a decision made by the immigration officer to assess whether it's a correct decision. In reality, it is very difficult to challenge a decision at the Federal Court. Most of the time, officers make correct decisions based on what documents were submitted to them. It is sometimes recommended to reapply rather than asking a judge to look into it unless a serious error was made. For example, an officer completely ignored some documents submitted in support of your application and did not provide any explanation for it. It doesn't happen on a regular basis, but officers can make mistakes as anyone else can, and a judicial review is another way to make sure you have a chance to challenge it.
Another common question about judicial reviews is their effectiveness. What do I accomplish by winning it? Or, in other words, what is the remedy I can seek by filing a JR? The most you can ask the judge is to quash the decision and send it back for another officer to review it. It means that you cannot change the outcome of the decision by winning a JR; you simply will have another officer looking at the same application.
It is essential that you are adequately represented, and your counsel gives you an assessment on your case and advises you on the end result of your process, rather than a successful JR. It is important to win a war and not just a battle. There are cases where you can be successful in winning a judicial review but still be rejected by another officer who your case is remitted to. Which means the clients' time and resources are spent and nothing is accomplished in the end. In order to avoid such situations, you need a lawyer who has expertise in these matters, who can raise the right issues by analyzing your case carefully and picking out the precise mistake of fact or a mistake of law, if any, and work particularly on it to achieve a successful outcome for you.