The Immigration Lawyers Who Go to Federal Court
Key principles immigrants and their lawyers should know before going to Federal Court
In recent years, the Federal Court of Canada has experienced an unprecedented spike in judicial reviews related to immigration matters. In 2024, the Federal Court received 24,784 immigration filings — roughly four times the yearly average observed in the five years prior to the COVID-19 pandemic.
The increase has been driven by a combination of factors: stricter interpretations by Immigration, Refugees and Citizenship Canada (IRCC) of Canadian immigration law and policies, higher refusal rates for certain application categories, the use of bulk processing software producing cursory and error-prone decisions, and a near parabolic increase in the number of mandamus filings as Canada’s immigration department seemingly abandons first-in, first-out processing. Applicants, increasingly savvy thanks to online forums and legal marketing, now see Federal Court as a critical lifeline.
Immigrants going to Federal Court, and the lawyers representing them, should be aware of a few key principles.
Since most visa refusals are not appealable, and because reconsideration requests rarely move the needle, judicial review is often the only recourse for an applicant to have their matter meaningfully considered. It is amazing how often IRCC will refuse an application based on what seems like a clear error, denies or ignores reconsideration requests, and then a judicial review successfully reopens the file before it is ultimately approved.
Judicial review is not an appeal or a chance to re-argue a case with new evidence. It is a process whereby a decision is examined for reasonableness and procedural fairness by the Department of Justice (DOJ) then by the Federal Court. Successful judicial reviews typically result in the decision being set aside and sent back to IRCC for reconsideration by a different officer. Costs being awarded are the exception, not the norm.
Filing a judicial review is governed by the Immigration and Refugee Protection Act and the Federal Courts Citizenship, Immigration and Refugee Protection Rules.
The clock starts ticking when an applicant is notified of a refusal. For matters arising in Canada, the judicial review must be filed within fifteen days — for those outside Canada, the deadline is sixty days.
After the judicial review application is filed, IRCC sends the applicant the internal reasons for refusal. These are necessary because refusal letters are increasingly vague (it’s amazing how the IRCC every year seems to find new ways to make them even vaguer) and behind every refusal letter are officer notes that are more detailed.
After receiving the officer’s notes, the applicant has thirty days to file their Applicant Record, arguing why the officer’s decision was unreasonable and/or a breach of procedural fairness. The DOJ then has thirty days to respond. If the DOJ defends the decision, the applicant has ten days to file a Reply. The parties then wait, and increasingly wait even longer due to growing backlogs, for leave to be granted. If leave is granted, a hearing is scheduled 90-days later. Prior to the Hearing, the parties will have the opportunity to provide further written arguments.
In an effort to try to manage the increase in judicial review applications, the Federal Court launched a Study Permit Pilot Project on October 1, 2024. Under the pilot project, hearings are eliminated, and judges rule on both leave and the merits of the case simultaneously. Memorandums of argument are limited to a few paragraphs. It remains to be seen whether this simplified process will be expanded to other types of immigration matters.
Another growth area in immigration practice for Federal Court litigators is mandamus. Prior to the COVID-19 pandemic, mandamus applications were relatively rare. The numbers have since exploded, with several YouTube channels even guiding applicants on how to file such applications. Mandamus in the immigration context is a court order compelling IRCC to act on an immigration application that has been unreasonably delayed. The cat is out of the bag, so to speak, and until IRCC figures out a way to better inform applicants on where they stand in the queue, more and more mandamus applications will likely be filed.
Canada’s 2025-2027 Immigration Levels Plan, which aims to shrink Canada’s population by cutting immigration levels by 20%, has, for the first time, imposed caps on the number of new temporary residents and requires that over a million foreign workers and international students leave Canada in the next few years. Nothing in this plan suggests that there will be a decrease in the volume of applicants going to Federal Court. As the number of immigration spots decreases, each becomes more valuable, and setting aside an unreasonable refusal all the more important.
