At Federal Court, you do not file an “appeal”, but rather an “application for leave” for “judicial review”. The application is for “leave” in the sense of “permission”, so you are applying for “permission” to proceed to the second stage, “judicial review”. The first stage (“application for leave”) is as follows:
- Within 15 days of receiving the decision, you file a notice with the Court and the government, which tells them you are challenging the decision (and what decision, and when you received it, and very generally why you are challenging it)
- After filing the notice, you have 30 days to file your Application Record, which contains a copy of the notice, the decision, all of the evidence that the decision-maker had or ought to have had that you are relying on, and your arguments for why the decision should be overturned
- After you file the Application Record, the government has 30 days to file their arguments; they may also file evidence which was or ought to have been before the decision-maker, but it is not common
- After the government’s written arguments, you have 10 days to submit written reply arguments
- When all of these stages have been completed, your application for leave is said to have been “perfected”, meaning all of the standard paperwork has been filed
There are some events which can change this timeline. For example, if necessary you or the government may need to request extra time from the Court, and as long as there is some merit to your case and you have a reasonable explanation for the delay, and the other side doesn’t suffer for it, the Court will usually grant the request. From December 21 to January 7 the Court is in recess and time is not usually counted (but sometimes is). Your “perfected” application goes to a judge of the Federal Court (there is no way of knowing which one), and the judge can make one of two decisions:
- Dismiss the application, in which case there are no reasons given and no way to appeal; or
- Allow the application, in which case the judge will also set a hearing date 90 days in the future, with some due dates in between to file additional arguments and evidence
Occasionally a judge will order the decision-making body to produce the complete certified tribunal record before making a final decision on the application for leave, and ask if the parties are willing to settle. This usually suggests that they are likely to grant/allow the application for leave, and there is almost never a settlement (because there is rarely any position in between what the applicant is asking for and nothing).
If the application for leave is allowed, then the next major step is the judicial review hearing. While you do not need to attend your hearing (your counsel and the government’s counsel will be presenting arguments to the judge), it is a good idea to do so, as it is the only chance the judge will have to see that you are a real person and to see your face. You will not need to testify, but will sit in the audience. Federal Court hearings are open to the public, but are rarely attended by anyone not involved in the case.
There are generally two ways that a judge can decide a judicial review:
- Grant or allow the application for judicial review, in which case they will give reasons; or
- Dismiss the application for judicial review, in which case they will issue reasons, but there can only be an appeal if the judge themselves agrees that there is an important question of law to be determined on the case
The reasons why this is a “judicial review” and not an “appeal” are that no new evidence is allowed (no matter how much it might change the situation), and that the judge cannot decide based on whether or not they agree with the challenged decision, but rather on whether it was made fairly and reasonably. This means that a judge might completely disagree with a decision, but still refuse the judicial review application because the decision was “reasonable”.
In the Canadian system, a judge cannot order that you should be found a refugee. All that a judge can do is grant the judicial review application, and order that the case be re-determined, usually by a different decision-maker. Sometimes a judge will give more specific directions about the treatment of evidence or how the case should proceed, but usually not.
The entire process takes, very approximately, one year.