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Matt Bomer | migrationlaw

Judicial Reviews And It's Uses

Oct 12th 2015 at 6:56 AM



What is a judicial review, and when is it used?


In simple terms, judicial review is a useful tool when faced with a court or administrative board decision that one side feels has been made incorrectly. The purpose of a judicial review is to ensure that in administrative law that the government or governing bodies including courts and administrative boards, are not exceeding their jurisdictions in coming to important decisions for cases.


Primarily, what is called “a leave for judicial review” is filed when one side feels that an error or omission in fact or law has had a negative effect in the administration of a decision before the court or administrative board. If this fact or law were considered properly before the judge, then the party filing the appeal feels that a different judgement would have been passed by the court.


Therefore, judicial reviews are an important tool for lawyers, and cannot be used recklessly before the courts. In fact, a “leave” for judicial review means that the merits of the appeal for a judicial review must be approved or certified first, before an actual judicial review is conducted.


In other words, if the merits of the argument for a leave for judicial review are found to be valid, then a formal judicial review will be conducted. Conversely, if the argument is found to be without merit, then the leave for judicial review is dismissed and the decision is considered final. Of course this is a simplistic overview of judicial reviews and other appeal options are not being discussed – you should speak to a licensed lawyer for more information about your specific case and situation.


So what are errors or omissions in fact are necessary to grant a judicial review? Again, this is a simple general overview, but factors could include if certain testimony were not included in establishing the case; if one of the sides believes that the law used to come to the judgement was used incorrectly; if certain facts that were not available or known while the case was presented before the judge came to light only after the judgement was handed down, and would have had an impact on the judgement passed. These are just simple examples, but a qualified lawyer can explain in more specific detail as it may relate to your situation.


An important note that in Canada, there are certain limits to when a leave for judicial review can be filed. If the decision was passed down in Canada, for an appellant who is in Canada, then the time limit for filing a leave for judicial review is 15 days from the time that the appellant receives the decision. If the decision was passed down for an appellant who is outside of Canada, then the time limit for filing a leave for judicial review is 60 days from the time the appellant receives the decision. It is important to note that the time limit starts from the time the appellant receives the decision, not necessarily the date the decision was handed down, to account for mailing times as applicable. This is especially important for appellants who are outside of Canada for the proceedings or for decisions made by visa offices abroad.


But what does a judicial review really mean for someone filing a leave for judicial review for their immigration case?


In simple terms, it is a process by which someone, by reasons of omission or error in law or fact, feels that they outcome of their immigration decision would have been different, had this omitted fact been considered correctly, or if the applicable law were applied correctly to their case. If presented compellingly, and if the judge agrees with the presentation of the argument, then the case would be sent back to the court that had originally heard the case, under a different judge or panel, to re-hear the complete case. A judicial review only ensures that proper procedure and that all the facts that should have been considered and presented, were heard in the making of the decision. A judicial review can only refer the case back to be re-heard, and cannot change the original decision or recommend a different decision be made. Therefore, in the context of an immigration case, for instance a refugee hearing, a leave for a judicial review could be filed if one party feels that the appropriate law was either not applied, or not applied correctly in the case, and should be re-heard after a decision was passed down.


Obviously a judicial review will not be necessarily granted every time, and there are specific situations where a judicial review is not permitted. You should consult with a licensed lawyer about the specific details about your particular situation, and whether filing a leave for judicial review is appropriate in your case. Only a qualified lawyer can provide you with the expert counsel required, and only a qualified lawyer can represent you in a judicial review.


About The Author:


Matt Bomer is an expert in immigration law who also likes to write many interesting articles and blogs, helping people understand many aspects of these regulations and make the right decisions.


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