What to expect in your appeal to Federal Court.
By Joel Sandaluk / Partner, Immigration Lawyer
In most cases, an appeal of an immigration decision to the Federal Court is called an “application for leave and judicial review”. You are called the “applicant”. This is decided in two stages. At the first stage – “leave” – the Court considers your appeal based on written arguments and evidence from your lawyer, and from the lawyers for the immigration department, the Department of Justice. Your lawyer first must file a notice to the Court that you are appealing the decision, usually within 15 days of an inland decision, or 60 days for an overseas decision, although this can vary and may be extended in individual cases. Your lawyer then has 30 days to file an “application record”, or longer if no reasons for the decision were previously provided. The “application record” includes arguments and evidence on your behalf. The Department of Justice then has 30 days to file a written reply, and your lawyer has an additional 10 days to file a further written reply. In some cases, the Department of Justice will settle the case at this stage.
If not, the Court will proceed to read the arguments from both sides, and grant or deny “leave”, usually in about 4 to 6 months after you first filed your notice. If “leave” is denied, there is no further appeal. If “leave” is granted, then the Court will schedule a “judicial review” hearing date within three months. Before the hearing, there will be an opportunity to file further arguments and evidence. In some rare cases, you may be cross-examined out of court by the Department of Justice, and your lawyer may cross-examine opposing witnesses if any.
Your “judicial review” hearing will take place at the Federal Court: in Toronto, this is at 180 Queen Street West, at the northwest corner of Queen and University. You do not testify: your evidence has already been given by affidavit in the “application record”. However, you, your friends and family are welcome to attend and observe from the gallery. Because the judge may see you and know who you are, you should dress respectfully.
The hearing will usually be scheduled for one and a half hours. After everyone is seated, the judge will be announced. You will be asked to stand up, and then allowed to be seated. The judge will start by making some preliminary comments on the case, which may give you some idea what s/he thinks of your case. Your lawyer will then make arguments and take questions from the judge, the lawyer for the Department of Justice do the same, and your lawyer can make a final, brief reply. At the end, the judge will usually “reserve” the decision, meaning that s/he will not make a decision there, but rather, will write it and send a copy to your lawyer, usually within a month or two. On rare occasions, the judge will make a decision on the spot.
In most cases, the decision from this judge is final. If the decision is against you, you may have an opportunity to appeal the decision to the Federal Court of Appeal, if the judge thinks that your case raises important issues affecting other people as well. The Department of Justice can do the same if the decision is against them. In very rare cases, appeals can go all the way up to the Supreme Court of Canada.
If the decision is in your favour, then in most cases, the matter is returned for reconsideration by a different decision-maker. The Court will make clear what mistakes the first decision-maker made, so that these are not repeated on reconsideration – however, your case can be refused again for different reasons, which could be appealed again.
While every case is different, statistics have shown that about 20% of cases are granted “leave”, and about 50% of cases that go to “judicial review” are successful. A good lawyer should be able to improve these odds for you, sometimes significantly.
You should be aware that the Federal Court is a “court of public record”, which means that all proceedings can be accessed by the public, including the media. This will usually be the first time that your case is available to the public, since most applications and immigration proceedings are conducted in private. Although court processes can be tracked online on the Federal Court website at www.fct-cf.gc.ca, the actual documents and details of the case are only available by attending the courthouse itself. However, the Court will usually publish decisions on “judicial review” on-line, and in many cases, local or national media will report the information. If you have a good reason, you can ask the Court in advance to maintain confidentiality of your case, in whole or in part.
It is also important to know that only lawyers can represent you in Federal Court, and not immigration consultants. Make sure that the lawyer who represents you is experienced in Federal Court immigration litigation, as the law and procedure is highly specialized. And don’t be afraid to ask questions – a good lawyer will welcome this, and wants you to be informed.