Judicial Review by the Federal Court of Canada

In an application for judicial review you ask a Federal Court judge to review the IRB-RPD or IRB-RAD decision to determine if the Member made a legal mistake.

Judicial review is a reconsideration of your decision, not an appeal. The Federal Court cannot make a new decision, and cannot interfere with a decision that is supported by proper evidence, even if the Federal Court might have reached a different conclusion on those facts. If the Federal Court decides there has been a legal mistake, then it can set the original decision aside, reopen your case, and refer it back to be reconsidered by a different IRB-RPD Member.

You may be eligible to apply for judicial review at the Federal Court of Canada if:

  • If you are not eligible to appeal to the IRB-RAD
  • If you received a negative decision on your appeal to the IRB-RAD.

Staying in Canada

The status of your removal order depends on which IRB division made the decision you are asking the Federal Court to review. For decisions made by the:

  • IRB-RAD:
    • Your removal order is on hold. You can stay in Canada until the Federal Court makes a decision.
  • IRB-RPD:
    • Your removal order is not on hold. You may need to leave Canada.
    • In these situations, if CBSA attempts to remove you before your judicial review application is decided, you must ask an administrative stay of removal to CBSA. Call your lawyer immediately if you are called in by CBSA for removal procedures.

How to apply for Judicial Review

Submit an Application for Leave

If you wish to apply for judicial review, the first step is to obtain leave from a judge of the Federal Court. In this stage, you must demonstrate that the decision on your refugee claim was not fair or reasonable, or that there was an error. The Federal Court reviews the documents about your case.

If the Federal Court gives leave, this means that the decision on your refugee claim will be examined in depth. If the Federal Court dismisses the leave application, the application for Judicial Review is also dismissed and the file will be closed.

Judicial review

If you are granted leave, your case will proceed to an oral hearing for judicial review. The judge will render an order scheduling the steps and timelines for your lawyer to follow prior to the hearing date.

If you are not represented by a lawyer, you will need to be present at the hearing to argue your case. If you are represented by a lawyer, you do not need to attend but you may choose to do so.

Federal Court of Canada decisions

You may receive the decision on the judicial review application from the judge on the day of the hearing or at a later date.

  • If the Court agrees with the IRB-RPD or IRB-RAD’s decision and finds there was no error, you may need to leave Canada. Discuss next steps with your lawyer
  • If the Court returns your case to the IRB-RPD or IRB-RAD, your case will go back to the IRB to be reviewed by a new Member. This does not necessarily mean that the original decision will be reversed.