How to Apply for Leave and Judicial Review: A Step-By-Step Guide

Completing an application for leave and judicial review is a notoriously complicated process. In this article, we provide a step-by-step guide to help you complete the application. 

Step 1: Receive your refusal from the IRCC

You cannot apply for leave and judicial review until you receive your refusal letter from the IRCC. When this occurs, you have 15 days to apply for leave if the matter arises in Canada , and 60 days to apply if the matter arises outside of Canada. 

Once you’ve received your refusal, you should contact an immigration lawyer; they can help you determine your next best move, and whether or not judicial review is the right choice. 

Step 2: Establish whether or not you are eligible to file an appeal

Before applying for leave and judicial review, you must first determine whether or not you are eligible to file for an appeal with the Immigration and Refugee Board of Canada (IRB). You must exhaust all appeals before proceeding with a judicial review. You can only file for an appeal in very specific circumstances - like a spousal application or an inadmissibility finding inside Canada - this means that most applicants will not be able to apply for an appeal. For example, you cannot appeal a refusal for permanent residence, or a work and study permit.

An immigration lawyer can help you determine whether or not you are eligible to file an appeal. 

Step 3: Complete and file form IR-1 - application for leave and judicial review

Once you have received your refusal and determined that you cannot file an appeal, you must fill out form IR-1 - the application for leave and judicial review. You can find this form on the Federal Court’s website.  

Your application for leave and judicial review must contain the following information (as laid out in the Federal Courts Citizenship, Immigration and Refugee Protection Rules, Section 5):

• (a) the full names of the parties;

• (b) the date and the details of the matter — the decision, determination or order made, measure taken or question raised — in respect of which relief is sought and the date on which the applicant was notified of or otherwise became aware of the matter;

• (c) the name of the tribunal and, if the tribunal was composed of more than one person, the name of each person who was on the tribunal;

• (d) the tribunal’s file number, if any;

• (e) the precise relief to be sought on the application for judicial review;

• (f) the grounds on which the relief is sought, including a reference to any statutory provision or Rule to be relied on;

• (g) the proposed place and language of the hearing of the application for judicial review;

• (h) whether or not the applicant has received the written reasons of the tribunal;

• (i) if the applicant consents to the electronic service of documents, the applicant’s electronic address as set out in Form 141A of the Federal Courts Rules;

• (j) the name, address and telephone number of any person who, for a fee or other consideration, prepared the application for leave; and

• (k) the signature, name, address and telephone number of the applicant’s solicitor or, if the applicant acts in person, his or her signature, name, address for service in Canada and telephone number.

To help you complete your application, here is a more detailed look at each of the items you’ve need to include in your application for leave and judicial review:

(a) The full names of the parties

This includes:

• The full name of the applicant
• The Respondent (The Minister of Citizenship and Immigration), not IRCC or the Minister of Immigration, Citizenship and Refugees of Canada

(b) The date and the details of the matter, (c) the name of the tribunal, and (d) the tribunal’s file number, if any

You will include:

• That you are seeking leave for an application of judicial review
• Your name
• The matter that you are requesting leave and judicial review for (i.e. a refused work permit application).
• Where (inside or outside Canada) and when the refusal took place
• Who refused the application (typically, an officer of the IRCC - include the agent’s file number if it is known)
• Your unique client identifier (UCI) and application number - this is indicated on the refusal letter.
• Whether or not you have received written reasons for the refusal

Here is an example of what this section might look like (Xs represent names and numbers):

The Applicant, (Applicant’s name), seeks leave of the Court to commence an application for judicial review of:

‍

I. A refusal by an Immigration Officer inside off Canada of the

Applicant’s application (the immigration stream you have applied for) dated the 29th of May, 2022. The Applicant received the decision on the same day in their online account.

‍

II. The decision maker was an Immigration Officer of IRCC. The tribunal

address is XXX.

‍

III. The UCI of the Applicant is XXX and the application number is XXX.

‍

IV. The Applicant has not received any reasons for the decision to refuse

the (immigration stream you’ve applied for) application.

(e) The precise relief to be sought on the application for judicial review

In this section, you will detail exactly what you want to get out of the judicial review. In most cases, your goal will simply be to have the refusal quashed, and for your application to be reconsidered by a new immigration officer. Judicial reviews cannot force the IRCC to accept your application. A judge cannot issue you a visa or permanent residence.

You will also need to cite the provisions and laws being relied on that are subject to judicial review - in most cases, this is section 18.1 and 18.3 of the Immigration and Refugee Protection Act. These sections give immigration officers the power to refuse applications.

Here is an example of how this section might be laid out:

‍

IN THE EVENT THAT LEAVE IS GRANTED, the Applicant seeks the following relief by way of judicial review pursuant to s. 18(1)(a) and 18.1(3):

‍

A. For certiorari to quash the decision to refuse the application for (the immigration stream you have applied for) and refer the application back for reconsideration by a different Immigration Officer; and

B. Such further or other orders as the Honourable Court deems.

There might be other remedies available to you. While this is the most common, it is important to consult with a lawyer to ensure that your rights are protected. This document will serve as the first document to start the proceedings, and you need to seek the proper relief from the beginning.

(f) the grounds on which the relief is sought, including a reference to any statutory provision or Rule to be relied on

To successfully apply for leave, you will need to establish that you have grounds to have the refusal quashed and your application reconsidered. In general, the judge will review the reasons for the decision of the immigration officer, and assess if they made a reasonable decision. In some cases, they will assess if they made the correct decision, but generally, immigration officers are entitled to deference and their decisions are assessed on the reasonableness standard. 

The following are considered to be grounds for judicial review by the Government of Canada:

(a) the decision-maker made an error in law, whether that error is obvious or not;

(b) the decision-maker got the facts wrong at a fundamental level, or appears to have ignored a fact of fundamental importance;

(c) the decision-maker violated a principle of natural justice or failed to observe procedural fairness;

(d) the decision-maker’s decision goes beyond the authority conferred upon the decision-maker by the IRPA and the Regulations [section 18.1(4), Federal Courts Act].

You can find this information, as well as more precise language (found in Appendix B), in this Judicial Review document from the IRCC.

‍

You should know that judicial reviews are not fact-finding missions; you can only make your claim based on the facts found in your immigration application, as well as the actions taken by the immigration officer. New information cannot be added to your application as part of the judicial review process.

Here are a few examples of grounds on which relief may be sought:

‍

1. An error in law: The immigration officer denies an application to sponsor the applicant’s conjugal partner because the applicant is not married. The law does not require marriage for spousal sponsorship - a conjugal partner is sufficient. They have misunderstood the law. 
2. An error in fact: An applicant is denied a study permit because the immigration officer claims the school they are enrolled in is not a Designated Learning Institution (DLI). They’re incorrect - the school is a DLI. They have misunderstood the facts of the application.
3. The decision-maker violated a principle of natural justice or failed to observe procedural fairness: An immigration officer is told by their superior to deny an application without explanation. The officer is violating the principle of procedural fairness that “whoever hears must decide”. 

As another example, the immigration officer could have considered evidence that was not originally provided in the application without letting you know, or failed to send you a procedural fairness letter when they were required to.

4. The decision-maker’s decision goes beyond their authority: An immigration officer has the right to deny a visitor visa application based on their findings, but these findings do not give them the authority banning the applicant from applying again. They ban the applicant anyway - they’ve made a decision that goes beyond their authority. 

Without specialized knowledge, it’s hard to know what grounds you may have to file for judicial review. A consultation with an immigration lawyer can help you determine what grounds you may have. 

(g) the proposed place and language of the hearing of the application for judicial review

‍

Where, when, and how the application will take place. You might, for example, say that you would like the hearing to take place in Ottawa, and in English, by teleconference. 

Here’s an example of how that would look: If leave is granted, the Applicant proposes that the application for judicial review be heard at Ottawa, Ontario, in the English language. The preferred hearing mode is video hearing or teleconference.

(h) whether or not the applicant has received the written reasons of the tribunal

Receiving the written reasons of the tribunal has a very specific meaning in the case of judicial review. While it is likely that you have received some reasons for the refusal of your application in your refusal letter (i.e. the reasons for the stay are inconsistent with temporary intent, insufficient funds), these are very rarely sufficient to meet the standards needed for judicial review.

In almost all circumstances, you will select “No”. As part of the judicial review process, by doing this, you will receive detailed notes from the immigration officer. These notes will take some time to receive (usually about 4-6 weeks as part of the process), but they’re well worth acquiring - they can give you much more solid ground on which to apply for leave and judicial review. They are similar to an Access to Information Request, but the rules for disclosure and the documents that need to be provided are different.

(i) if the applicant consents to the electronic service of documents, the applicant’s electronic address as set out in Form 141A of the Federal Courts Rules

The documents sent and received during your application for leave and judicial review can be transmitted electronically. In this section, you will provide your email address - with this, you are consenting to send and receive documents electronically. This is the most effective (and least costly) way of completing your application for leave and judicial review. The alternative is serving the Department of Justice in person, which involves printing copies, going to their office, and personally serving the documents.

(j) the name, address and telephone number of any person who, for a fee or other consideration, prepared the application for leave

This will contain your contact information, or the information of the lawyer that  prepared the application on your behalf. Immigration consultants cannot provide any advice for judicial reviews, and they cannot file a judicial review on your behalf. They are not licensed, insured or trained to file or advise on judicial reviews. You must work with an immigration lawyer, or complete the application yourself.

(k) the signature, name, address and telephone number of the applicant’s solicitor or, if the applicant acts in person, his or her signature, name, address for service in Canada and telephone number.

This will contain the signature and contact information of your lawyer (solicitor), or your own signature, name, and contact information if you are preparing the application yourself. 

Filing your application for leave and judicial review

You can file for leave and judicial review via the E-Filing portal. 

The most recent Consolidated Practice Guidelines for Citizenship, Immigration and Refugee Protection Proceeding indicates that you need to have a cover letter with your application for leave and judicial review: 

Judicial review of visa decisions – Timeline for filing an application (15 or 60 days under paragraph 72(2)(b) of the IRPA). Applicants should indicate clearly in a cover letter accompanying the notice of application when it is submitted for filing whether the judicial review relates to an “Inland Application” or “Application arising outside Canada” and whether the applicant is in Canada or abroad.

You need to file the cover letter with the application for leave and judicial review.

After you file the application for leave and judicial review, you will receive a notice of appearance by the Department of Justice. This will most likely contain standard language: “The Respondent, the Minister of Citizenship and Immigration, intends to respond to this Application for Leave and for Judicial Review.” If you provided your email address, this will be sent by email within 10 days.

The Federal Court will automatically request the reasons from IRCC pursuant to Rule 9 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules. You will receive the refusal letter, the GCMS notes and any other reasons for the decision. 

Again, if you provided an email address on the application for leave and judicial review, you will receive all of this information via email. 

Step 4: Complete and file the applicant’s record

The applicant’s record is the most important piece of your application for leave and judicial review. To file the applicant’s record, you will need to include the following:

(i) the application for leave,

(ii) the decision or order, if any, in respect of which the application is made,

(iii) the written reasons given by the tribunal, or the notice under paragraph 9(2)(b), as the case may be,

(iv) the request, if any, for an anonymity order under rule 8.1,

(v) one or more supporting affidavits that verify the facts relied on by the applicant in support of the application or a request for an anonymity order under rule 8.1, if any,

(vi) a memorandum of argument that contains concise submissions of the facts and law relied upon by the applicant for the relief proposed in the event that leave is granted, and

(vii) a statement indicating whether the hearing will be in English or French, or partly in English and partly in French, and whether the materials for the hearing will be in English and French, or partly in English and partly in French; and

The applicant’s record is one of the most complex portions of the application for leave and judicial review - you should consult with an immigration lawyer if you have any questions about the process.

To provide clarity, we are going to elaborate on each of the points you need in your applicant’s record:

‍

(i) The application for leave

This is the same as the application for leave that you filed in the previous step. You’ll need to include it in the applicant’s record. 

(ii) The decision or order, if any, in respect of which the application is made and (iii) The written reasons given by the tribunal

You won’t be writing much down for these two sections - instead, provide the reasons for the decision that were sent to you by the Federal Court, which typically includes the refusal letter, GCMS notes and any other documents received under the Rule 9. These are the documents that were sent by the Federal Court at the end of Step 3, under the section “Filing your application for leave and judicial review”.

(iv) The request, if any, for an anonymity order

You may include a request for anonymity as part of your applicant record. Most people filing for leave and judicial review cannot obtain anonymity, so completing this section is quite rare.  

(v) One or more supporting affidavits that verify the facts relied on by the applicant in support of the application or a request for an anonymity order under

The rules and format of the affidavit can be complex. As a general rule, you must include an affidavit that verifies the facts relied on in the application for leave and judicial review. Any documents that are being relied upon in your application needs to be introduced as an exhibit. For example, if you provided proof of funds, you need to swear that you provided this document, and you need to provide it as an exhibit. Given the complexity of these affidavits, it’s highly recommended that you work with an immigration lawyer to complete this section. 

(vi) A memorandum of argument that contains concise submissions of the facts and law relied upon by the applicant for the relief proposed in the event that leave is granted

The memorandum of argument is the most complex part of the applicant’s record. You will include arguments the refusal should be quashed, and that your application should be considered again by a new immigration officer. The arguments will include:

• Research on case law, acts, and other documents
• Arguments disputing the points set forth in the reasons for decision

The memorandum of argument is often divided into several different parts. These might include:

• An overview of the arguments (The Overview)
• The facts of the case (The Facts)
• The issues that may give cause for the refusal to be quashed (The Issues)
• The legal precedent and legal documents that support quashing the rejection (The Law)
• The legal arguments that support your position (The Arguments)
• The goal of the memorandum of argument - judicial review (The Order Sought)
• The authorities the memorandum of argument is using to make its arguments (List of Authorities).

Here is a brief example of what might be included in each section:

The Overview

The Applicant seeks judicial review of the decision to refuse the Applicant’s application for a study permit since they are not attending a DLI.

‍

The Respondent found that their application should be rejected since the School of Business at the University of Canada is not a DLI.

‍

The submissions below demonstrate that the Respondent failed to consider relevant evidence. Namely, the Respondent did not take into account that the school the Applicant is enrolled in is a Designated Learning Institution (DLI).

1. The Facts

University of Canada is a Designated Learning Institution (DLI), as per the list of Designated Learning Institutions created by Immigration, Refugees and Citizenship Canada (IRCC). - See affidavit of the applicant at page 7, exhibit A - list of DLI.

2. The Issues‍

Did the Minister err by failing to consider the Designated Learning Institution (DLI) status of University of Canada?

3. ‍The Law

Any relevant case law, federal documents, and other laws will be cited here. Hiring an immigration lawyer is particularly important here - it is unlikely that you will have access to the number of documents you will need to make a convincing argument to the Court.

In this example, it is straightforward - the Respondent failed to consider the DLI list as provided in Exhibit A. Hence, the Applicant met the requirements for a study permit under the Immigration and Refugee Protection Regulations, and the Respondent made a mistake to refuse the study permit.

In truth, almost all cases are significantly more complicated than the one we’ve laid out here - and hiring an immigration lawyer is the best way to make your case. 

‍

4. Order Sought

The Applicant submits that this application raises serious issues leading to an unreasonable assessment. The application for leave and for judicial review ought to be granted.

The hearing and the materials for the hearing will be English.

5. List Of Authorities

The Applicant relies on the following authorities:

Federal Courts Act

(vii) A statement indicating whether the hearing will be in English or French, or partly in English and partly in French, and whether the materials for the hearing will be in English and French, or partly in English and partly in French

Tell the Court whether you would like the hearing to be in English, French, or both. In the example above, we have included this statement in the “Order Sought” section of our memorandum of argument. 

Step 5: Receiving the memorandum of argument

Once you’ve completed the applicant’s record, the respondent can send a memorandum of argument, in which they argue that no mistake was made and that their decision was reasonable.

Alternatively, they may realize that you have a solid case - in these circumstances, they may reach out to you in an effort to settle the issue before going to court. When this occurs, they’ll usually offer to have the application reopened with a new immigration officer. When settling out of court, your best bet is to talk to an immigration lawyer for advice. 

In either case, you’ll need to wait for a reply from the Minister of Immigration (who is the respondent) before proceeding further. 

Step 6: Complete and file the reply memorandum

Much like the memorandum of argument contained within the applicant’s record, the reply Memorandum will contain a variety of legal arguments to contest the respondent's memorandum of argument. 

You will find many of the same items within the reply memorandum that you would in the initial memorandum of argument:

• Research on case law, acts, and other documents
• Arguments disputing the points set forth in the respondent's memorandum of argument
• Other information to contest the memorandum of argument sent by the respondent. 

The reply memorandum is another complicated piece of the judicial review puzzle, as you’ll need the legal knowledge to retort to the respondent’s arguments. A consultation with an immigration lawyer like Cedric Marin can help.

Step 7: Attend the Judicial Review Hearing

Once you have completed all of the steps of your application, you will wait to learn whether or not your application for leave and judicial review has been accepted. While a high percentage of applications for judicial review are rejected (around 80%), many applications are settled before this step. In other words, having a strong application for judicial review prepared by a lawyer with experience can substantially increase your chance of success.

Should your application for leave be accepted, a judicial review hearing will be held - usually within 30 to 90 days of your application for leave being accepted.

Most judicial review hearings are being held virtually by video hearing or teleconference. When you are being represented by a lawyer, you do not need to attend the judicial review hearing (though you still can if you would like). 

During the hearing, the facts of the case will be argued by both you (or your lawyer) and a lawyer from the Department of Justice (DOJ) representing the Minister of Immigration, Refugees and Citizenship. Should you win, the refusal will be quashed, and your application will be reconsidered.

Conclusion

Completing an application for leave and judicial review is a complicated, time-consuming, and error-prone process. Only 20% of applications for leave are ever granted - the success rate is far lower if you do not have an immigration lawyer to help you complete the application.

Cédric Marin can help you complete your application for leave and judicial review, and increase your success rate. He can bring your case before the IRCC in order to argue that the rejection be quashed before leave is granted, expediting the time in which your application will be reviewed. Should your case make its way before the courts, he will argue fervently on your behalf during the judicial review hearing.

There is no reason to take the risk of completing your application for leave and judicial review yourself. Increase your chances of success - book a consultation with Cédric Marin today.