GuidelinesJudicial Review in Canada: A Guide for Business Immigration and Startup Visas

Judicial Review in Canada: A Guide for Business Immigration and Startup Visas

Navigating the Complex Judicial Review Process for Business and Startup Visa Applicants

Judicial review can be an important recourse for business immigrants and startup visa applicants who have had their applications unfairly or unreasonably refused by Immigration, Refugees and Citizenship Canada (IRCC). However, the judicial review process itself is complex, with strict deadlines and specific procedures that must be followed. This guide breaks down the key aspects of judicial review that business and startup visa applicants need to know.

Judicial Review in Canada: A Guide for Business Immigration and Startup Visas

Overview of Judicial Review

Judicial review allows the Federal Court of Canada to review decisions made by federal tribunals and administrative decision makers, including visa and immigration officers at IRCC. The Court examines whether the officer’s decision was reasonable and procedurally fair, not whether their decision was correct per se.There are two main outcomes when an application for judicial review is allowed:

  • The decision will be sent back to IRCC for redetermination by a different officer. The new officer is bound to take into account the Court’s reasoning.
  • In exceptional cases, the Court may issue specific instructions on how the new officer should redetermine the application.

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It is important to note that successfully obtaining judicial review does not guarantee the visa or immigration application will ultimately be approved, as the decision still lies with the IRCC officer. However, it provides applicants with an additional opportunity to have their case reconsidered fairly.

Grounds for Seeking Judicial Review

Business immigrants and startup visa applicants may consider seeking judicial review if the refusal decision:

  • Was unreasonable or unfair
  • Made an obvious error in law
  • Violated principles of procedural fairness
  • Made incorrect findings of fact
  • Exceeded the officer’s authority

Applicants cannot submit new evidence for judicial review that was not included in the original application. The review focuses strictly on the officer’s decision based on the documentation that was available to them.

Time Limits for Filing for Judicial Review

Strict deadlines apply for filing an application for leave and judicial review, based on where the decision was made:

  • 15 days if the decision was made inside Canada
  • 60 days if the decision was made outside Canada

The countdown begins from the date the applicant received the refusal notice. Extensions may be requested but require demonstrating special circumstances. Meeting these deadlines is extremely important.

The Judicial Review Process Step-by-Step

The application for judicial review involves two main stages:

  1. Application for Leave: The applicant files for leave to have the Federal Court review the decision. This includes serving the other parties and filing an application record containing arguments and evidence. The respondent then files a reply. A judge reviews all records and decides whether to grant or dismiss leave.
  2. Judicial Review: If leave is granted, the Court proceeds with a judicial review hearing where both parties make oral arguments. The judge then decides whether to allow or dismiss the application for judicial review.

If allowed, the matter is usually sent back to IRCC for redetermination by a different officer, who is bound by the Court’s reasoning.

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Tips for Business and Startup Visa Applicants

Business immigrants and startup visa applicants seeking judicial review should:

  • Consult an immigration lawyer – The process is complex so legal expertise is highly recommended.
  • Review the refusal carefully – Identify potential grounds for judicial review. Was the decision unfair or unreasonable?
  • Gather documentation – The Court can only review what the officer had available so comprehensive records are key.
  • Act quickly – Commencing the application as soon as possible is essential to meet strict deadlines.
  • Be prepared for redetermination – Even if judicial review is allowed, approval is still not guaranteed. Strong cases lead to better odds.

While judicial review can be a difficult process, it remains an important recourse for applicants who believe they have been unjustly refused.

With thorough preparation, legal support, and compelling arguments, business immigrants and startup visa applicants can demonstrate that their application warrants a fair second consideration by IRCC.

Also Read:

Judicial Review Overview for Canadian Immigration

When to File for Judicial Review of a Canada Visa Application

Business Visitor Visa Refusals and Judicial Review

Challenging an IAD Work Permit Refusal Decision

Seeking Judicial Review of a Rejected Canadian Startup Visa

Guide to Judicial Review for Entrepreneur Immigration to Canada

Appealing a Rejected Self-Employed Visa Application

Challenging a Refused Work Permit on H&C Grounds

Seeking a Stay of Removal While Filing for Judicial Review

Using Judicial Review to Overturn a Negative PR Decision

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