Canadian Refugee Procedure/72-75 - Judicial Review

IRPA Sections 72-75

Sections 72-75 of the Immigration and Refugee Protection Act read:

DIVISION 8
Judicial Review

Application for judicial review
72 (1) 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, subject to section 86.1, commenced by making an application for leave to the Court.

Application
(2) The following provisions govern an application under subsection (1):
(a) the application may not be made until any right of appeal that may be provided by this Act is exhausted;
(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 of or otherwise becomes aware of the matter;
(c) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice;
(d) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance; and
(e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.

Right of Minister
73 The Minister may make an application for leave to commence an application for judicial review with respect to any decision of the Refugee Appeal Division, whether or not the Minister took part in the proceedings before the Refugee Protection Division or Refugee Appeal Division.

Judicial review
74 Judicial review is subject to the following provisions:
(a) the judge who grants leave shall fix the day and place for the hearing of the application;
(b) the hearing shall be no sooner than 30 days and no later than 90 days after leave was granted, unless the parties agree to an earlier day;
(c) the judge shall dispose of the application without delay and in a summary way; and
(d) subject to section 87.01, an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.

Section 72(1): Judicial review is commenced by making an application for leave to the Court

Section 72(1) provides that judicial review by the Federal Court is commenced by making an application for leave to the Court. Historically, leave has been granted in about 16.8 per cent of cases, with 46.2 per cent of judicial reviews succeeding from among those granted leave.[1]

Judicial review is a discretionary remedy which may be denied where an applicant approaches the court without clean hands

Where the reviewing court is satisfied that the applicant is guilty of misconduct, the court “may dismiss the application without proceeding to determine the merits or, even though having found reviewable error, decline to grant relief”.[2] In exercising its discretion, a reviewing court is “to strike a balance between, on the one hand, maintaining the integrity of and preventing the abuse of judicial and administrative processes, and, on the other, the public interest in ensuring the lawful conduct of government and the protection of fundamental human rights”. The Federal Court of Appeal set out a list of non-exhaustive factors a reviewing court may consider: the seriousness of the applicant’s misconduct and the extent to which it undermines the proceeding in question; the need to deter others from similar conduct; the nature of the alleged administrative unlawfulness and the apparent strength of the case; and the importance of the individual rights affected and the likely impact upon the applicant if the administrative action impugned is allowed to stand.[3]

A common issue that arises in immigration proceedings is where an applicant was supposed to leave Canada and fly to their country, but they do not attend at the airport as directed by Canada Border Services Agency and a warrant for their arrest is consequently issued.[4] However, there are other mechanisms for achieving this deterrence besides declining to allow a judicial review, including the detention review process under the IRPA and related regulations.[5]

Canadian administrative law generally disfavours judicial review of interlocutory administrative decisions

Canadian administrative law generally disfavours judicial review of interlocutory administrative decisions, as parties are expected to exhaust all available remedies within the administrative process before seeking judicial intervention.[6] Exceptions to this principle arise only in “very rare” situations where no effective recourse exists at the conclusion of the administrative process.[7] The rationale behind this near-absolute rule against judicial review of interlocutory or interim administrative decisions is that judicial review is reserved for situations with an “immediate, certain and final impact on legal rights, legal obligations or practical prejudice.” Since interlocutory or interim steps rarely meet this threshold, granting such reviews requires “specific and cogent evidence” demonstrating a clear justification.[8]

When deciding whether exceptional circumstances exist in a particular case, this Court applies the six-factor approach outlined in Air Canada v Lorenz : (i) hardship to the applicant, (ii) waste, (iii) delay, (iv) fragmentation, (v) the strength of the applicant’s case, and (vi) the statutory context.[9] Courts weigh these factors to assess whether, on balance, early judicial intervention is warranted or if it would unduly disrupt the administrative process. A party alleging, for instance, that it will suffer serious prejudice from continuing before the tribunal may still be required to show that the hardship is of a kind that no eventual remedy could address, or that not intervening now would cause duplicative effort or hamper the statutory framework’s objectives.[10]

Section 72(2)(b) and (c): there is a deadline of 15 or 60 days to serve and file an application, but extensions may be granted

Section 72(2)(b) provides that, 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 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 of or otherwise becomes aware of the matter. Section 72(2)(c) specifies that a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice.

For a court to grant an extension of time, the applicant must meet the test set out in Canada v Hennelly:

1. a continuing intention to pursue his or her application;

2. that the application has some merit;

3. that no prejudice to the respondent arises from the delay; and

4. that a reasonable explanation for the delay exists[11]

The court has discretion to entertain a second judicial review regarding the same decision

In Onwubiko v. Canada, following the RAD’s decision, the applicants filed an application for leave and judicial review. Leave was denied by a judge of the Federal Court on September 30, 2022. The applicants then made a second attempt at judicial review of the RAD’s decision, filed in February 2023 through new counsel. Leave was granted by the Federal Court of this second application on February 4, 2025.[12] The doctrine of res judicata prevents litigation in two scenarios: issue estoppel (preventing the relitigation of specific issues) and cause of action estoppel (preventing the relitigation of an entire legal proceeding which has been litigated previously). However, in both cases a court has discretion to to hear the matter nonetheless.[13]

Section 74(d): An appeal to the Federal Court of Appeal may be made only if the judge certifies that a serious question of general importance is involved

Section 74(d) of the IRPA provides that, subject to section 87.01, an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question. To be certified, a question must be a serious one that: (i) is dispositive of the appeal; (ii) transcends the interests of the immediate parties to the litigation; and (iii) contemplates issues of broad significance or general importance.[14] As a corollary, the question must also have been raised and dealt with by the court below and it must arise from the case, not from the Judge’s reasons.[15] Furthermore, the question must not have already been determined and settled in another appeal.[16]

The Federal Court of Appeal has entertained an appeal without a certified question, where the issue on appeal involved the jurisdiction of the Federal Court judge or an allegation of bias. As stated in Canada v. Aziz:

The Minister argues that in this case no certified question is required. He relies on a number of immigration cases in which this Court has permitted an appeal to proceed despite the absence of a certified question. For example, in Forde v. Canada, the Court entertained an appeal from a Federal Court order staying a deportation pending the disposition of another immigration case. The Court concluded that no certified question was required because issue was whether the stay order was within the jurisdiction of the Federal Court under paragraph 50(1)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7. In Subhaschanddran v. Canada, the Court entertained an appeal from a Federal Court order that it construed as a refusal of a judge to grant or dismiss a motion to stay a deportation. This Court has also held that no certified question is required to appeal an order on a motion for recusal based on an allegation of bias, because such an allegation goes to the jurisdiction of a judge to adjudicate the case: see, Narvey v. M.C.I. and Re Zündel.[17] [internal citations omitted]

This is on the basis that paragraph 27(1)(c) of the Federal Courts Act authorizes an appeal from an interlocutory judgment of the Federal Court in limited circumstances.[18]

Section 75: Rules

Rules
75 (1) Subject to the approval of the Governor in Council, the rules committee established under section 45.1 of the Federal Courts Act may make rules governing the practice and procedure in relation to applications for leave to commence an application for judicial review, for judicial review and for appeals. The rules are binding despite any rule or practice that would otherwise apply.

Inconsistencies
(2) In the event of an inconsistency between this Division and any provision of the Federal Courts Act, this Division prevails to the extent of the inconsistency.

References

  1. ↑ Colin Grey, Canada’s contemporary asylum system, in Ervis Martani and Denise Helly, Asylum and resettlement in Canada, Genova University Press, <https://gup.unige.it/sites/gup.unige.it/files/pagine/Asylum_and_resettlement_in_Canada_ebook.pdf>, page 88.
  2. ↑ Minister of Citizenship and Immigration) v Thanabalasingham, 2006 FCA 14, para. 9.
  3. ↑ Minister of Citizenship and Immigration) v Thanabalasingham, 2006 FCA 14, para. 10.
  4. ↑ JA v. Canada (Citizenship and Immigration), 2025 FC 124 (CanLII), at para 6, <https://canlii.ca/t/k90dq#par6>, retrieved on 2025-09-29.
  5. ↑ Alexander v. Canada (Citizenship and Immigration), 2021 FC 762, para. 44.
  6. ↑ A.B. v. Canada (Citizenship and Immigration), 2025 FC 486 (CanLII), at para 29, <https://canlii.ca/t/kb2j8#par29>, retrieved on 2025-09-30.
  7. ↑ Lin v. Canada (Public Safety and Emergency Preparedness), 2021 FCA 81, para. 6.
  8. ↑ Çolakoğlu Metalurji A.S. v Altasteel Inc., 2025 FCA 29, para. 11.
  9. ↑ Air Canada v Lorenz (T.D.), 1999 CanLII 9373 (FC), [2000] 1 FC 494.
  10. ↑ A.B. v. Canada (Citizenship and Immigration), 2025 FC 486 (CanLII), at para 31, <https://canlii.ca/t/kb2j8#par31>, retrieved on 2025-09-30.
  11. ↑ Canada (Attorney General) v Hennelly, 1999 CanLII 8190 (FCA).
  12. ↑ Onwubiko v. Canada (Citizenship and Immigration), 2025 FC 1314 (CanLII), at para 10, <https://canlii.ca/t/kdd2k#par10>, retrieved on 2025-07-24.
  13. ↑ Onwubiko v. Canada (Citizenship and Immigration), 2025 FC 1314 (CanLII), at para 19, <https://canlii.ca/t/kdd2k#par19>, retrieved on 2025-07-24.
  14. ↑ Medina Rodriguez v. Canada (Citizenship and Immigration), 2024 FC 401 (CanLII), at para 46, <https://canlii.ca/t/k3b91#par46>, retrieved on 2024-05-18.
  15. ↑ Zhang v. Canada (Citizenship and Immigration), 2013 FCA 168.
  16. ↑ Rrotaj v Canada (Citizenship and Immigration), 2016 FCA 292 at para 6.
  17. ↑ Canada (Citizenship and Immigration) v. Aziz, 2011 FCA 18.
  18. ↑ Canada (Public Safety and Emergency Preparedness) v. Ewen, 2023 FCA 225 (CanLII), at para 16, <https://canlii.ca/t/k165v#par16>, retrieved on 2023-11-20.
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