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Applications for Leave
Legislative Framework
Challenges of all decisions under the Immigration Refugee Protection
Act, R.S.C. 2001, C.
27 (“IRPA”) that are not subject to specified appeals will go to the
Federal Court. Section 18.(1) of
the Federal Courts Act, R.S.C. 1985, C.F-7 (“FCA”) states:
Subject to section 28, the Federal Court has exclusive original
jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition,
writ of
mandamus or writ of quo warranto, or grant declaratory relief,
against any
federal board, commission or other tribunal ; and
(b) to hear and determine any application or other proceeding for
relief in the
nature of relief contemplated by paragraph (a) including any
proceeding
brought against the Attorney General of Canada, to obtain relief
against a
federal board, commission, or other tribunal.
Section 18.(3) of the FCA states:
The remedies provided for in subsection (1) and (2) may be obtained
only on
an application for judicial review made under section 18.1.
Section 18.1 of the FCA states:
(1) An application for judicial review may be made by the Attorney
General of
Canada or by anyone directly affected by the matter in respect of
which relief
is sought.
The cumulative effect of section 18 and 18.1 of the FCA is that a
single remedy, under an
application for judicial review (as opposed to an action) is sought
in the Federal Court. In the result,
it is appropriate for provincial courts to decline jurisdiction in
matters governed by IRPA and subject
to judicial review.
Section 72(1) of IRPA states:
Judicial review by the Federal Court with respect to any matter – a
decision,
determination or order made, a measure taken or a question raised –
under
this Act is commenced by making an application for leave to the
court.
Therefore, all matters of judicial review in relation to IRPA are
subject to leave requirements.
Prior to June 28th, 2002 (the date that IRPA came into force),
non-visa officer decisions were subject
to leave while visa officer decisions outside of Canada were not.
Now it is clear that all decisions
in relation to IRPA are subject to leave requirements.
The process of leave is a method by which a court can control or
limit the number of
aggrieved parties who can access the court system. Leave
requirements can be viewed as
necessary when appeals or judicial reviews are so abundant that they
overwhelm the efficient
administration of justice. Leave requirements can also be viewed as
arbitrary and unfair when
seemingly meritorious applications are rejected without reasons
given or further review allowed.
That frustration may be compounded by similar cases receiving
different results. In the realm of
immigration, it is necessary to balance competing interests to
maintain the confidence and the
respect of both aggrieved parties and the general public in the
administration of justice.
Time Limitations for Seeking Leave
It is important to be cognizant of the following time limitations
specified under section 72(2)
of IRPA:
(b) subject to paragraph 169(f), notice of the application shall be
served on the other
party and the application shall be filed in the Registry of the
Federal Court (“the
Court”) within 15 days, in the case of a matter arising in Canada,
or within 60 days,
in the case of a matter arising outside Canada, after the day on
which the applicant
is notified or otherwise becomes aware of the matter.
In general terms, visa officer decisions outside of Canada are
subject to a limitation period
of 60 days while all other decisions and other matters inside Canada
are subject to the 15 day
limitation. Note that the limitation periods for immigration related
judicial reviews are different than
the general limitation of 30 days as set forth in section 18.1(2) of
the FCA which governs all other
judicial review applications.
The date that limitations begin to run is significantly different
than limitations dates under the
former Immigration Act. Deadlines for filing an Application for
Leave of the Refugee Protection
Division (“RPD”) no longer run from the date the negative decision
is received. Rather, it begins to
run pursuant to s.169(f) of IRPA:
(f) the period in which to apply for judicial review with respect to
a decision of the
Board is calculated from the giving of notice of the decision or
from the sending of
written reasons, whichever is later.
Because the RPD must provide written reasons to the claimant, the
limitation period runs
from the date the reasons are sent, not when they are received.
It is a curious change in the limitation period given the inherent
unfairness of starting to run
a limitation period before a claimant could even be aware that such
a limitation is running. Having
regard to the time being only 15 days, serious practical problems of
engaging and retaining counsel
to file the appeal are self evident. Also of concern is the
possibility of Canada Post delaying the
actual receipt of the decision to a time significantly close to or
even beyond the expiration of the
limitation period.
Non RPD decisions, such as IAD or immigration officers’ decisions,
are also governed by
the 15 day limitation which starts to run 15 days after the
applicant is notified of the decision or
otherwise becomes aware of the matter. This limitation has created
substantial issues because
officers or even tribunals could provide oral notification of a
decision but not communicate the full
text of the decision until later. Does the limitation run from the
date of oral notification or from the
date of written notification? What if the oral notification is
simply a confirmation that they will be
receiving a negative decision at a future date- has the limitation
period started to run?
Extension of the Limitation Periods
IRPA provides at s.72(2)(c) for extension of filing as follows:
(c) a judge of the Court may, for special reasons, allow an extended
time for
filing and serving the application or notice;
In order to seek such an extension of time a Notice of Motion must
be filed along with a
Motion Record which will include an affidavit of facts to be relied
upon and a written memorandum
of argument. To be successful in an application for extension of
time the applicant must establish
the following:
(1) a continuing intention to pursue the application;
(2) the application has some merit;
(3) no prejudice arises from the delay; and
(4) a reasonable explanation exists for the delay.
Note that there is no appeal in respect of an application to extend
time because s.72(2) (e)
states that “no appeal lies from the decision of the Court with
respect to the application or with
respect to an interlocutory judgement.”
Exhaustion of Internal Remedies
Section 72(2)(a) of IRPA states that an application to the Federal
Court may not be
made until “any right of appeal that may be provided by this act is
exhausted.”
It is important to determine whether there is an internal remedy
specified under IRPA. If the
person has a right of appeal elsewhere under IRPA, that appeal must
be pursued before an
application is made to the Federal Court. The jurisdictional issues
will be important because it is
essential that counsel properly advise his or her client about the
correct forum for the argument. For
example, pursuant to s.63(1) of IRPA:
(1) A person who has filed in the prescribed manner an application
to sponsor a
foreign national as a member of the family class may appeal to the
Immigration
Appeal Division against a decision not to issue the foreign nation a
permanent
resident visa.
Under this provision a refusal of the principal applicant would
result in an appeal to the IAD.
Such an appeal would take into consideration humanitarian and
compassionate circumstances
pursuant to s.67(1)(c) of IRPA (unless the foreign national was not
a member of the family class or
the sponsor was not a sponsor with the meaning of the Regulations
(see s.65 of IRPA)).
However, within family class sponsorships there are also situations
where a dependent of
the principal applicant is deleted from the application for reasons
of not meeting the definition of a
dependent son or daughter. (For example, dependent children are
challenged by the visa officer as
not being full-time students and one deleted from the application
without affecting the principal
applicant or other dependents.) In those circumstances, the IAD
jurisdiction is not engaged and the
Federal Court leave must be filed within 60 days of the notification
of that deletion decision.
Obtaining Leave
Section 72(2)(d) of IRPA allows for a judge of the Federal Court to
“dispose” of an
application for judicial review “without delay and in a summary way
and, unless a judge of the Court
directs otherwise, without personal appearance.”
Except in very rare cases, leave would be dealt with entirely on the
basis of the written
material filed without personal appearances and, as stated earlier,
without right of further appeal.
It is generally the practice of the Federal Court not to provide any
reasons for either allowing or
denying leave.
The legal threshold for granting leave is commonly stated in terms
of whether the application
raised a “serious issue” to be heard. Where there is no serious
issue with a possibility of success,
leave should be denied. As stated previously, one purpose of the
requirement for leave is to prevent
an excess of non-meritorious applications flooding the Federal
Court; however, applicants should
be granted leave if there appears to be any possibility of success.
Despite such a low threshold test, which has been referred to as “a
fairly arguable case,”
the combination of a lack of reasons combined with no further appeal
exposes the applicant to an
abrupt end to what is generally a very important matter in the
applicant’s life and that of his or her
family.
The remainder of this paper is devoted to our views on various
aspects of improving
chances of obtaining leave in the Federal Court. Whether such views
actually are correct we
cannot say, as we know not what motivates or persuades Federal Court
Judges other than by
reading what is written in reported decisions.
Improving Chances for Leave from the Federal Court
Application for Leave
The application for leave itself is governed by Rule 5 of the
Federal Court Immigration and
Refugee Protective Rules (“the Rules”). It is your first chance to
interest the judge in the applicant’s
case. Rule 5(1)(f) requires counsel to set out the grounds on which
the relief is sought and to
include a reference to any statutory provision or Rule to be relied
on. If a rule or statutory provision
is to be challenged or interpreted the groundwork should be laid in
the initial notice. In our view,
providing the grounds of the application should be used as the
initial opportunity to succinctly outline
the problem with the decision under review.
Use of the standard litany of grounds set out in s.18.1(4) of the
FCA is by definition
technically correct but practically useless in defining the
parameters of the issues. In our practice,
we prefer to describe one or two grounds that are of the most
importance first and then boilerplate
type grounds afterwards. We do not drop the boilerplate grounds at
this juncture because it is often
the case that the successful grounds for the judicial review are
discovered after the filing of the
Application for Leave.
Counsel often does not have access to all of the facts at the time
the Application for Leave
must be filed, therefore it is important to gain as much information
as possible from the applicant
and from any other source of reliable information so that your
grounds for review are as pointed as
possible. As Minister’s counsel might argue that you are restricted
to the grounds that you pled in
the Application for Leave, it is important that your grounds are
specific enough to have the judge
focus on the elements of your case but also general enough to
encompass arguments based on
all the facts. Consequently, you should list specific, pointed
grounds first followed by more generic,
classic grounds thereafter.
Request for Written Reasons
Where the applicant has not received written reasons of the
tribunal, and that fact is set out
in the application for leave, Rule 9 requires that the tribunal
provide these reasons within a specified
time frame. Counsel should almost always make a request for reasons
if the decision maker has
not yet provided the applicant with written reasons. Benefits of
requesting reasons include:
1) The written reasons or lack thereof may provide insight in to the
grounds that
should be argued for the judicial review.
2) A request for reasons extends the limitation period for
perfecting the application
for leave. Normally all applications must be perfected “within 30
days after filing the
application” (Rule 10(1)(a)). Where the application for leave states
that reasons have
not been received, the 30 days only begin to run from the time of
receiving the written
reasons or from the notice stating there are no written reasons
(Rule 10(1)(b)).
Perfecting the Application for Leave (filing the Record)
Rule 10(2) of the Rules specifies the contents of the record:
(2) The applicant shall serve on every respondent who has filed and
served
a notice of appearance, a record containing the following, on
consecutively
numbered pages, and in the following order
(a) the application for leave,
(b) the decision or order, if any, in respect of which the
application is made,
(c) the written reasons given by the tribunal, or the notice under
paragraph
9(2)(b), as the case may be,
(d) one or more supporting affidavits verifying the facts relied on
by the
applicant in support of the application, and
(e) a memorandum of argument which shall set out concise written
submissions of the facts and law relied upon by the applicant for
the relief
proposed should leave be granted,
and file it together with proof of service.
The affidavits that are required to perfect the application are
limited according to Rule 12(1):
Affidavits filed in connection with an application for leave shall
be confined to such
evidence as the deponent could give if testifying as a witness
before the Court.
This rule preserves the common law rules of evidence which determine
the admissibility of
affidavits; pursuant to the common law rules against hearsay, a
Court must be satisfied that the
affidavit passes the necessity and reliability tests.
In the vast majority of cases the applicant should be the person
swearing the affidavit
because the applicant has direct personal knowledge of the events
that transpired. Where aspects
of the applicant’s knowledge are indirect or based on information
from others or based on belief, the
sources of that knowledge and the reasons for belief should be
specified. In some instances it might
be impossible to file an affidavit based on personal knowledge. An
affidavit that is only based on
information and belief will be accorded significantly less
evidentiary weight by the Federal Court.
While weak evidence does not necessarily result in the denial of
leave, it is much more likely that
the application for judicial review will be denied.
As in other matters of litigation, it is generally “inappropriate”
to file a solicitor’s affidavit
because counsel should not both give evidence and make submissions.
The client should provide
evidence and counsel should make a sound argument based on the
evidence and the law.
The affidavit should set out the essential facts, in chronological
order, that were before the
original decision maker. The affidavit should also attach, as
exhibits, the key documents that were
before the original decision maker. When you summarize the facts in
your memorandum of
argument, every effort should be made to edit or eliminate
extraneous facts which have no bearing
on the judicial review. Remember, the judge will still have access
to the entirely of the applicant’s
affidavit. It is important to focus your summary of the facts so
that you can focus your argument.
Unless you are sufficiently informed in respect of the essential
elements of a case for judicial review,
ie: a breach of natural justice, patently unreasonable finding of
fact, etc. it is difficult if not impossible
to strip down the facts of an affidavit to its essentials. Putting
in a plethora of unessential and
unhelpful detail could lead a Federal Court Judge to the conclusion
that you are unclear of what is
relevant and that you are unsure about the strength of your case.
Argument
The memorandum of argument should be a concise written submission of
the facts and law
relied upon (Rule 10(2)(e)). Because there are no second chances,
counsel should not partially
argue the case. In other words, do not save an important ground for
later argument because you
may never get a chance to make an argument later.
By the same token, the word “concise” was added to the Rules to aid
counsel in the writing
of a memorandum. Memoranda of argument are often referred to as
“briefs” for good reason and
they should be brief. As discussed above, the facts from the
affidavit should not merely be repeated;
they should be selected, summarized, and utilized to make an
effective argument. Refer to relevant
law and reproduce the applicable section and subsection but not
necessarily all of the surrounding
passages; your appendix will reproduce the section of law in its
entirety.
Arguments should follow a logical progression and should selectively
cite relevant case law.
Refer to and argue the applicability of cases that are on point but
do not cut and paste enormous
single spaced passages into your argument. Emphasize the importance
and applicability of key
principles in the paragraphs you cite. Summarize and apply the
principles to the facts of the
applicant’s case.
In short, be brief, but organized and effective in your argument.
Technical Requirements
It is important that you correctly identify the Federal Court in
your style of cause. With the
new FCA, the “Federal Court of Canada, Trial Division” no longer
exists. Your style of cause should
now simply read, “Federal Court.”
Also, with the reorganization in Citizenship and Immigration Canada,
it is important that you
properly identify the Respondent. Depending on the nature of the
decision under review, the
Respondent might later need to be amended from the “Minister of
Citizenship and Immigration.”
Rule 5(2) of the Federal Court Immigration and Refugee Protection
Rules states that the Minister
of Citizenship and Immigration “shall be the respondent in an
application for leave” under s.72 of
IRPA. However, when you are filing a notice of motion in an
emergency stay, who is the proper
Respondent? Contact Minister’s Counsel at the Department of Justice
for the latest developments
on how the reorganization of departmental responsibility might
affect certain applications at Federal
Court.
Ensure that you also follow the most up to date formal requirements
when you submit your
Record for service and filing. For instance, the amendments to the
FCA mandate that all
applications for leave and the Record be in 12 point font. The size
of the font will impact your page
length, which cannot exceed 30 pages, including the backer.
Practical Advice in Respect of You and Your Client
When you are engaged to review a matter that is subject to the leave
provisions to Federal
Court, you need to organize your practice to enable you to serve the
client without negligence. When
you pick up the phone to speak to a prospective client, the first
few questions should establish when
the 15 or 60 day limitation period has started to run. If the
commencement of the limitations period
is uncertain, a personal interview needs to take place immediately.
During that initial interview
sufficient facts need to be established to determine whether the
case has any prospect of success.
If, in your professional opinion, there is little or no possibility
of success, you need to consider very
carefully whether you should file an Application for Leave.
Several matters need to be considered:
1. Is filing an Application for Leave beneficial to your client,
both in respect of the judicial review
itself, and for the overall situation, including a possible
application for landing from within
Canada that may be pending?
2. If there are no statutory stay provisions in the case (ie. PRAA
reviews) will there be any real
prospect of being successful on an emergency stay application which
will likely occur at a
fairly early juncture in the proceedings?
3. If the clients are destitute or close to it, will your
encouragement to file a judicial review have
the sole effect of using what remaining funds they have before they
are removed from
Canada? ( We often ask clients whether their funds could be better
used benefiting
themselves in their home country. That question brings home the
reality of whether or not
filing a judicial review is really worth the time, effort and money
to be expended.)
4. Is legal aid possible in the circumstances and can it be engaged
quickly enough to benefit
your client. (Legal aid typically requires an opinion concerning the
merits of the judicial
review.)
5. How will you feel after you have over extended your retainer,
lost the judicial review, have to
write off a few thousand dollars, and have a client who does not
appreciate anything that you
have done for them?
Before becoming completely discouraged about filing Applications for
Leave in the Federal
Court, our experience has actually been fairly positive in terms of
getting leave and end results.
Often, after a case has received leave from the Federal Court,
Minister’s counsel may make
overtures about consenting out of the review and giving your client
another chance. It may be
advisable to obtain a consent order for your client in these
instances.
The first time you prepare a judicial review and take it all the way
to the hearing, it will cost
you a small fortune in time that you will never be able to bill and
collect. The 10th time you file that
type of review you may benefit financially. Also, as you hone your
skills and build a reputation for
filing carefully considered materials and sound legal arguments, the
possibility that you might get
leave hopefully increases.
And finally, there is nothing more rewarding in the practice of law
than receiving a successful
result and then contacting a client and telling them that their
unsuccessful case has been
overturned. Nothing.
This paper was originally presented at the 2005 Citizenship and
Immigration Law Conference, presented by the Canadian bar
Association. For more information on Continuing Legal
Education programs, and other CBA news, please visit:
www.cba.org
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