Federal Court Procedure

5 Immediate Steps for Legal Representatives

1. THE REFUSAL – Take a breath and read the refusal letter closely. Then put it down and read it again in an hour or two. Ensure it relates to you, client ID (or UCI) and application numbers cross reference, and that names and dates make sense. Look to see if you can find any errors of fact.
2. TIMELINE/LIMITATION PERIOD –Quickly identify the nature of the refusal, in land, overseas, citizenship, a misrepresentation? Different appeal periods apply – 15, 30 or 60 days. This is critical to understanding the timeline under which you are operating.
3. MY ERROR – Look closely and determine if you committed an error in preparing and submitting the application.
4. ADVISE CLIENT – If you are a representative, advise the client of the refusal and the areas of concern. Further advise if is this is a case wherein you will be handling the appeal or sending it out to a specialist. Timelines, potential errors and costs can be canvassed in a preliminary manner.
5. CALL THE LITIGATOR – If referring the case, act as a liaison between the litigator and your client. Understand appeal timelines, costs and immediate steps required. Ensure you have a proper record to hand off to the litigator. Ensure the litigator is well-versed in these types of appeals and has a clear plan of action. Often-times, litigators will charge a fee for this initial assessment. 

Key Preparatory Steps for Lawyers, Consultants and Clients

1. TABLE OF CONTENTS –When preparing submissions include a detailed Table of Contents of the enclosures numbering the corresponding pages (either in your submission letter or separately including supporting documents) identifying the same pages in your Table of Contents. A litigator and the courts appreciate a well prepared and organized application package. It also ensures when Immigration Refugees and Citizenship Canada (IRCC) or Canada Border Services Agency (CBSA) vets the file, you are in a position to cross check with your own records. 
2. PROVIDE THE FULL FILE – Always provide the litigator with a copy of the entire file, including all opposing disclosure, i.e.: failed refugee claims as the Board is oftentimes using updated disclosure packages, POE notes, which are often helpful in extracting points of contention. 
3. ATIP REQUESTS – Make it a habit to order a few Access to Information and Privacy (ATIP) requests as these are especially helpful in litigation. With files taking years to process this information will be updated so one request may not be sufficient. These allow the applicant an opportunity to know the case to be met before having to wait to review the Respondent’s Memorandum. It takes a great deal of time to receive the ATIP packages and almost always too long to await in preparing an Application Record for Federal Court or Refugee Appeal Division. Sometimes it is best to just order the GCMS in emergency circumstances as these can be produced much faster than the entire file. 
4. DOCKETING FILE – Always follow up any conversations with the Embassy, IRCC Office or the Board with letters confirming conversations as it has often been the case where officers indicate they did not receive calls, etc or make the alleged statement. These will make it into the file and be available in the ATIP request as well. 
5. INTERVIEWS – Always request in person interviews if an officer is making credibility assessments. 
6. CASE LAW – Look to case law for ‘language’ utilized by the Courts. 
7. REASONS – Always request full written reasons of the decision maker within your submission. 
8. MANAGE EXPECTATIONS –Although not anticipated or desirable, you must have the conversation with your client regarding a potential refusal before a refusal. It at least provides a frame of reference for the client in the case of a negative decision. 
9. RECONSIDERATION REQUESTS – Although requests for reconsiderations are often ignored or not considered on refusals, they are not ALWAYS ignored and can save your client the cost of litigation -although unlikely, still worth the letter. 
10. KEEP CURRENT – Know the latest case law in the area you are dealing with to ensure you have the latest interpretation of the law as it affects your client. 

Notice of Application

The filing of a Notice of Application for leave commences proceedings (the Application for Leave). While previously the Notice of Application had to be served on the Respondent (Minister of Citizenship and Immigration as one example) in person and then re-filed with the Court Registry after service, the Federal Court has since shifted to online filing. This allows for electronic filing of the Notice of Application, and the Court Registry now serves the Notice of Application on the Respondent electronically on behalf of the Applicant. The Notice of Application must be filed within 15 or 60 days of the “decision” being communicated to the  applicant. The following information is required to complete the Notice of Application: 

1. The name of the Applicant; 
2. The name of the tribunal that made the decision. Some offices are reluctant to give out the name of the decision-maker and the signature on the refusal letter is often illegible; 
3. The location of the tribunal.  Exact addresses are not necessary and the address can be described as “the Canadian Embassy in China” or the “Canadian High Commission in New Delhi” for example; 
4. The date that the decision is made. This will usually be the date that the refusal letter is signed; 
5. The date that the decision was communicated to the Applicant. The Federal Court Act provides that where a decision is sent by ordinary mail, it is deemed to have been received on the 10th day after it was mailed. It is important to advise clients to keep the envelopes in which the decision arrives because there can be a delay between the date that the letter of refusal was signed and the date that it was mailed. However, most decisions are now provided electronically so the date of the e-mail with the decision attached, for example, would be important to note; 
6. The Applicant’s visa office file number and unique client identifier (UCI) number; 
7. Whether the Applicant has received the written reasons for the decision; 
8. Who prepared the Notice of Application; and 
9. The Notice of Application must also set out the grounds upon which the Applicant is seeking to have the decision set aside. 

The remedy sought at the Federal Court is outlined in the Application for Leave and for Judicial Review. Generally, when challenging the refusal of an application or dismissal of an appeal, the Court is asked to review the refusal or dismissal issued by a decision-maker, set aside the refusal/dismissal, and order that the matter be referred to a different decision-maker for re-determination. In the case of a Mandamus application, the remedy sought is a Court order specifying a timeline within which a decision-maker must make a final decision. The Federal Court is not able to re-instate or issue immigration status. 

Appearance

After a Notice of Application is filed and served upon the Respondent, the Respondent has 10 days in which to serve and file a Notice of Appearance. There is no special significance to this document other than the fact that if it is not served and filed on time, the Respondent will lose the right to participate in the proceedings or to be notified of further stages of the process. 

Affidavits

When a Notice of Application has been filed, the Applicant has 30 days in which to serve and file an affidavit (or affidavits) in support of the application.  These are incorporated into the Application Record, discussed below. Following this, the Respondent then has 30 days in which to serve and file their affidavit evidence.  

The Respondent’s affidavit materials can consist of an affidavit from the officer or someone in the office that has knowledge of the file. The Applicant’s affidavit must be based on actual knowledge of the Applicant. Although affidavits that are used in ancillary proceedings (such as applications for extensions of time) can be based upon belief, this is not true in affidavits in support of original actions. If an affidavit is based upon hearsay or belief (as opposed to knowledge), the Respondent can, and often does, bring a motion to have the affidavit struck out. Although the affidavit must be based upon actual knowledge there is nothing wrong with statements such as “I believe that I was dealt with unfairly.” Although technically incorrect, it helps define what the issues are in the application for judicial review. 

Certain applications for leave for judicial review are based upon what occurred or did not occur during an interview with an officer. It is extremely important that clients, who are unaccompanied at the interview, make detailed notes as soon as possible after the interview concludes so that they will be able to furnish as much detail as possible about the interview. A lack of detail in what exactly transpired will be fatal when compared to the affidavit of an officer who has the assistance of detailed notes made at the time of the interview, 

While typically no new evidence is permitted through the Federal Court process, there are very limited exceptions to this rule, including in circumstances where “new evidence” (i.e., evidence that was not before the decision-maker at the time the decision was made) can bring attention to breaches of procedural fairness. 

The affidavit must give details as to the basis of the attack on the decision. If it does not, the Respondent can bring a motion to have the proceedings struck out as not disclosing a cause of action. The more detailed the evidence, the more chance the application will have of success. 

Relevant documents can and should be attached to the affidavit as exhibits, such as an application package, disclosure, or other materials that were part of the proceedings before the refusal/dismissal decision. More than one affidavit can be filed. If someone other than the Applicant has relevant information concerning the matter (such as a previous representative or a family member), then additional affidavits should be filed. 

Application Record

Within 30 days (though up to an additional 10 days can be added in the case of written reasons being provided in hardcopy through mail) of receiving the written reasons for the decision, the Applicant must perfect and file an Application Record. The Application Record consists of the following: 

1. A table of contents; 
2. A copy of the Notice of Application; 
3. Copies of the affidavit or affidavits; 
4. A copy of the decision and written reasons of the visa officer; 
5. Copies of the contents of the file of the visa officer which include all documentation that was before the visa officer when the decision was made; 
6. A Memorandum of legal points to be argued; and  
7. A list of legal cases or authorities that are being relied upon. 

After the Application Record has been served and filed with the Court, the Respondent has 30 days in which to file their affidavit(s), if any, and Memorandum of Argument. Ten days after the latter filing, the Applicant may file a Memorandum of Reply. 

Remaining Procedure

If Leave is granted, and sometimes before Leave is granted, the Court requests the Respondent to produce the Certified Tribunal Record, which should contain the contents of the entire file before the decision-maker at the time the decision was made, as well as the decision and written reasons. The Court Order granting Leave also sets out the date, time, and location (either in-person or via video conference) for the Judicial Review hearing, and the next steps leading up to the Judicial Review hearing. The Applicant and Respondent each have the option of filing a Further Affidavit and Further Memorandum. The Court also sets the matter down (i.e., schedules a hearing) within 90 days of granting Leave, and encourages the parties to consider settlement within the first fifteen days following the Leave Order.  

The Further Affidavit and Further Memorandum are critical as the legal tests for obtaining leave and successfully overturning a decision on Judicial Review are different. Both the Applicant and Respondent are also given a time period in which to cross-examine the deponent of the affidavit. Such cross-examinations are helpful but not always done as the cost can be prohibitive. After the Respondent’s affidavits are filed, the Applicant has 20 days in which to complete any cross-examinations. The entire court proceeding usually takes between 6 months to a year to conclude. 

Judicial Review Hearing

The attendees of the Judicial Review hearing include the presiding Judge, counsel for the Applicant, counsel for the Respondent, and a Court Registry Officer. Observers are usually permitted to attend as well but are not permitted to speak and where the hearing proceeds via video conference, observers must remain muted with their cameras off. Applicants are not required nor permitted to provide testimony or be subject to questioning during the hearing. 

Hearings are usually 90 minutes in length, with each side having approximately 45 minutes to present oral arguments in the following order: first, the Applicant or their counsel; second, the Respondent; and finally, the Applicant has the right of reply. The presiding Judge also has the opportunity throughout the hearing to ask questions. 

While sometimes a Judge may decide to render their decision immediately at the conclusion of the hearing, most of the time a Judge will “reserve” their decision, meaning they will take additional time to consider the matter before providing their decision in writing to both parties. If the Judicial Review is allowed, the Applicant will generally receive the remedy they sought initially as outlined above, though in rare circumstances the Court can vary the remedy to be ordered. If dismissed, the Federal Court proceedings would conclude and the previous decision would stand undisturbed. An appeal to the Federal Court of Appeal is only permitted in very limited situations, for example where there is an important question of law. 

Settlement

Throughout the process, either before or after Leave is granted, it is also possible to achieve settlement between the parties. Settlement discussions can be initiated by either the Applicant or the Respondent. Settlement is usually achieved where both parties agree there is merit to the Federal Court application which is likely to be successful if it proceeds to a Judicial Review hearing. Settlement most often occurs after legal arguments have been filed, as this gives both the Applicant and the Respondent the opportunity to consider the issues raised. If settlement is achieved, the settlement offer will set out the conditions of the settlement, which can include the remedy the Applicant initially set out in the Notice of Application, in exchange for discontinuing the Federal Court proceedings. 

Work Involved

• Review of the immigration file, the law, including all relevant legislation and case law; 
• Applying for records held by Immigration, Refugees, and Citizenship Canada (IRCC), Canada Border Services Agency (CBSA), or other decision-makers through Access to Information and Privacy (ATIPS) requests; 
• To collect all relevant materials related to the client’s immigration history and assess chances of a successful application at the Federal Court; 
• Preparation of case strategy; 
• To pursue all other reasonable and appropriate appeal remedies and all work incidental thereto including the filing a Notice of Application, supporting affidavits, to cross-examine the visa officer overseas by telephone, presenting the relevant case law and evidence to support the case;  
• To compose legal and factual arguments;  
• Other unexpected circumstances. such as motions, which can be brought by either party. For example, if the visa officer on cross examination promises a copy of a document but then does not produce a copy or is taking too long the Applicant would bring a motion at the Federal Court to seek an order to have the officer produce the document. 

Cross Examination

Rule 12(2) of the Federal Courts Immigration and Refugee Protection Rules, SOR/2002-232 (FCIRPR), provides that cross-examination on affidavits filed in connection with an Application for Leave and for Judicial Review may be conducted only after Leave to proceed with the Application for Judicial Review is granted, absent special reasons. 

Where Leave is granted, the Federal Court Order will include the time limits within which cross-examinations, if any, on affidavits are to be completed. The option to cross examine an officer on his or her affidavit is exercised quite infrequently by immigration counsel. However, in the appropriate circumstances, an effective cross examination can be the decisive factor in succeeding on a Judicial Review application. 

In the immigration context, we are often cross-examining persons over the telephone. Cross-examination on affidavit is best reserved for cases in which the affiant attests to information which is not supported by any documentary evidence. This may be the case where the affiant attests to having taken certain steps towards processing an application for which no evidence exists, or where the affiant attests to having personal knowledge of a particular aspect of processing based on his or her own experience. Where a client’s budget is limited, a cross examination in writing, although not as effective, is a viable option and better than no cross examination at all on certain files.