Judicial Review in Canadian Immigration Law

Authored by Amit Vinayak, Barrister & Solicitor, Law Society of Ontario, Member of CILA

Judicial review is an essential mechanism in Canadian immigration law that ensures administrative decisions comply with legal standards, procedural fairness, and constitutional principles. It serves as a check on executive power, allowing individuals to challenge immigration decisions made by government authorities before the Federal Court. Canadian immigration law operates under the principle of ministerial discretion, but judicial review ensures that such discretion is exercised reasonably and within legal boundaries. By critically examining immigration rulings, courts maintain public confidence in decision-making processes while preventing unlawful, arbitrary, or unreasonable determinations.

Moreover, judicial review provides a mechanism for legal evolution, shaping interpretations of statutes such as the Immigration and Refugee Protection Act (IRPA) and refining policies through judicial precedents. Cases such as Singh (1985 SCC), Khosa (2009 SCC), and Agraira (2013 SCC) illustrate how courts have influenced immigration jurisprudence by reinforcing fundamental rights, ministerial discretion, and fairness considerations. As immigration litigation continues to develop, courts must navigate the delicate balance between protecting individual rights and ensuring administrative efficiency. While judicial review does not replace administrative decision-making, it serves as a necessary tool for accountability, ensuring that immigration officers, tribunals, and ministers operate within their legal boundaries.

Historical Evolution of Judicial Review in Canada

The concept of judicial review in Canadian administrative law has undergone significant transformations, influenced by landmark legal cases and legislative amendments. Below is a timeline capturing key developments:-

Before 1970: Limited Judicial Oversight

• Immigration decisions were largely unreviewable due to broad ministerial discretion.
• Courts hesitated to intervene in administrative matters unless there was clear evidence of jurisdictional error.

1970s–1980s: Emergence of Legal Oversight

• Immigration Act, 1976 introduced structured legal pathways, allowing individuals to challenge deportation orders.
• Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177 established constitutional protections for refugee claimants, recognizing their right to fundamental justice under the Canadian Charter of Rights and Freedoms (Singh SCC).

1990s–2000s: Strengthening Procedural Fairness

• The introduction of the Immigration and Refugee Protection Act (IRPA) (2001) provided codified judicial review provisions.
• Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 set a precedent for procedural fairness, ensuring administrative decisions account for humanitarian and compassionate considerations (Baker SCC).

2019–Present: Vavilov Framework & Expanded Review

• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 established a presumption of reasonableness review for administrative decisions, reshaping judicial scrutiny of immigration cases.
• Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 clarified that certified questions in immigration cases do not automatically warrant a correctness standard, reaffirming judicial deference to administrative expertise (Mason SCC).

Expanded Analysis of Judicial Review Principles

1. Standard of Review: Reasonableness vs. Correctness

The Supreme Court of Canada has developed a dual standard of review framework:

• Reasonableness Review: Presumed standard unless legislation dictates otherwise. The reviewing court assesses whether the decision is logical, intelligible, and within a range of acceptable outcomes.
• Correctness Review: Applied in cases concerning constitutional issues, statutory interpretation, or fundamental legal questions. Courts directly determine the correct legal answer without deference to the administrative body.

Application in Immigration Law

• Mason v. Canada (Citizenship and Immigration): Reinforced that reasonableness remains the default standard for immigration decisions.
• Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 SCR 559: Demonstrated deference to ministerial discretion in admissibility cases.
• Pepa v. Canada (Citizenship and Immigration), 2023 FCA 102: Upheld a reasonable interpretation of IRPA section 63(2), highlighting the courts’ reluctance to substitute their own decision-making for administrative bodies.

2. Procedural Fairness in Immigration Decisions

Procedural fairness ensures that immigration applicants receive adequate notice, opportunity to present their case, and unbiased decision-making. Courts intervene if a decision lacks transparency, justification, or consistency with established legal principles.

Key Cases on Procedural Fairness

• Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177: Established Charter protections for refugee claimants.
• Baker v. Canada (Minister of Citizenship and Immigration): Ensured procedural fairness in discretionary humanitarian applications.
• Khosa v. Canada (Citizenship and Immigration), [2009] 1 SCR 339: Affirmed deference to administrative expertise in immigration appeals.

Extended Case Studies in Judicial Review

1. Singh v. Minister of Employment and Immigration (1985)

• Issue: Whether refugee claimants had the right to a fair hearing.
• Decision: The Supreme Court ruled that denying an oral hearing violated fundamental justice under the Charter, leading to stronger procedural safeguards for asylum seekers.

2. Baker v. Canada (1999)

• Issue: Whether an immigration officer exercised discretion fairly in a humanitarian and compassionate application.
• Outcome: The Court identified a reasonable apprehension of bias, ruling the decision unreasonable and reinforcing guidelines for administrative fairness.

3. Mason v. Canada (2023)

• Issue: Interpretation of IRPA inadmissibility provisions.
• Outcome: The Supreme Court invalidated the immigration tribunal’s interpretation due to lack of nexus to national security, refining principles of reasonableness review.

4. Agraira v. Canada (2013)

• Issue: Ministerial decision-making in inadmissibility cases.
• Outcome: Court upheld ministerial discretion, emphasizing judicial deference in security-related immigration matters.

Specific Issues in Judicial Review

Several recurring issues arise in immigration judicial reviews:

• Abuse of Process: Delay in the Minister’s referral can constitute an abuse of process, raising procedural fairness concerns (Rodas Tejeda v. Canada (Citizenship and Immigration), 2025 FC 215 (CanLII)). The jurisdiction of the Immigration Division to consider delays before the decision to prepare a section 44 report is a complex issue (; Ismail v. Canada (Citizenship and Immigration), 2025 FC 232 (CanLII)).
• Minister’s Delegate Powers: Minister’s Delegates have a screening function and are not authorized to make final admissibility determinations or consider complex legal arguments like H&C or BIOC factors (Obazughanmwen v. Canada (Public Safety and Emergency Preparedness), 2023 FCA 151 (CanLII)).
• National Security and Disclosure: The IRPA contains provisions for non-disclosure of information that could harm national security (Canada (Attorney General) v. Soltanizadeh, 2019 FCA 202 (CanLII)). The court must ensure such information is protected while balancing fairness concerns.
• Mootness: An application for judicial review can become moot if the applicant is removed from Canada before the review is completed (Immigration and Refugee Protection Act / Citizenship Act).
• Appeals: Appeals to the Federal Court of Appeal are limited to cases where the Federal Court judge certifies a serious question of general importance (Immigration and Refugee Protection Act ( SC 2001, c. 27)).

Judicial Review Filing Timeline & Procedural Deadlines (2025 Update)

Recent changes in May 2025 have extended filing deadlines for judicial review applications due to backlogs in the Federal Court.

Stage	Deadline	Notes
File Judicial Review Application	60 days (Outside Canada) 15 days (Refugee Appeals)	IRPA s. 72(1)
Serve Application to Respondent	10 days	Federal Court Rules
Respondent’s Notice of Appearance	10 days	Defence Submission
Submit Applicant Record	Extended to 75 days (Previously 30 days)	May 2025 Update
Respondent’s Affidavit & Legal Arguments	30 days	Government Response
Judicial Review Hearing	Case-by-case	Court’s discretion

Conclusion

Judicial review remains a cornerstone of Canadian immigration law, ensuring administrative accountability and fairness. The evolving standard of review framework, coupled with key case law developments, continues to shape immigration litigation. By balancing judicial oversight with administrative discretion, courts provide legal clarity while upholding the rule of law. Ultimately, judicial review strengthens the rule of law, ensuring that immigration processes remain just, transparent, and legally sound. As immigration challenges become more complex with shifting policies, global migration patterns, and evolving human rights standards, judicial review will continue to be a pillar of Canadian administrative law, ensuring equitable outcomes for individuals seeking status, protection, or residence in Canada.

Legislation and Government Publications

Canada. Immigration and Refugee Protection Act, SC 2001, c. 27. Government of Canada, 2001. https://laws-lois.justice.gc.ca/eng/acts/I-2.5/.

Canada. Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22. Government of Canada, 1993. https://laws-lois.justice.gc.ca/eng/regulations/SOR-93-22/FullText.html

Government of Canada. Federal Court Judicial Review Process. Immigration, Refugees, and Citizenship Canada, 2025. https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/protection/refusal-options/federal-court-review.html.

Supreme Court of Canada Cases

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653. Supreme Court of Canada, 2019. https://www.canlii.org/en/ca/scc/doc/2019/2019scc65/2019scc65.html.

Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, [2023] 2 SCR 101. Supreme Court of Canada, 2023. https://www.canlii.org/en/ca/scc/doc/2023/2023scc21/2023scc21.html.

Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177. Supreme Court of Canada, 1985. https://www.canlii.org/en/ca/scc/doc/1985/1985canlii65/1985canlii65.html.

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. Supreme Court of Canada, 1999. https://www.canlii.org/en/ca/scc/doc/1999/1999canlii699/1999canlii699.html.

Canada (Citizenship and Immigration) v. Khosa, [2009] 1 SCR 339, 2009 SCC 12. Supreme Court of Canada, 2009. https://www.canlii.org/en/ca/scc/doc/2009/2009scc12/2009scc12.html

.Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 SCR 559, 2013 SCC 36. Supreme Court of Canada, 2013. https://www.canlii.org/en/ca/scc/doc/2013/2013scc36/2013scc36.html.

Canada (Citizenship and Immigration) v. Mason, 2021 FCA 156. Federal Court of Appeal, 2021. https://www.canlii.org/en/ca/fca/doc/2021/2021fca156/2021fca156.html

Pepa v. Canada (Citizenship and Immigration), 2023 FCA 102. Federal Court of Appeal, 2023. https://www.canlii.org/en/ca/fca/doc/2023/2023fca102/2023fca102.html.

CIC News. “Canada Extends Application Window for Judicial Review of Immigration Applications.” Canada Immigration News, May 2025. https://www.cicnews.com/2025/05/canada-extends-application-window-for-judicial-review-of-immigration-applications-0555480.html.

Immigration News Canada. “Canada Extends Judicial Review Window for Immigration by 45 Days.” Immigration News Canada, May 2025. https://immigrationnewscanada.ca/canada-judicial-review-for-immigration/

Disclaimer

This article is intended for informational and educational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for professional legal counsel. While efforts have been made to ensure accuracy, immigration laws, policies, and judicial interpretations evolve over time. Readers are encouraged to consult qualified immigration lawyers or official legal sources for specific guidance related to their cases. The references and case law cited are based on publicly available information and do not represent an endorsement or official legal interpretation by any governing authority.