Judicial Review: Am I able to Submit New Evidence?

By Partner Mathew Wilton

You’ve received a refusal on your immigration application and you are asking yourself what steps to take next?

Depending on the type of application, the steps to challenge or appeal the decision may differ (See: How to Appeal Canada Immigration Refusal Cases).

For many, challenging the decision means starting an application for Judicial Review with the Federal Court of Canada. Before pursuing this option, however, it is important to understand what evidence can/cannot be considered by the Federal Court to decide if this option is right for you.

When receiving the refusal of your application you may be provided with various reasons for the refusal, including but not limited to:

·         Not having significant family ties outside of Canada;

·         Not being established in your home country;

·         Having insufficient funds for the purpose of your trip; or

·         Providing details of your visit that are not consistent with a temporary stay.

Upon receiving the reasons for refusal, you may realize that you have additional evidence/documents to prove that these should not be concerns.

But can you submit this evidence in a Judicial Review application?         

In general, the answer is no.

This is because the purpose of the Judicial Review process is for the Federal Court to decide if the decision you received was reasonable or unreasonable based on the information and documents that were submitted in the initial application.

In other words, the Federal Court serves as a reviewing Court to assess the legality, rationality, and fairness of the original decision based on the evidence that the initial decision maker had before them. 

There are exceptions to when the Federal Court can consider new evidence which include:

1. evidence that provides general background in circumstances where that information may assist the reviewing court in understanding the issues relevant to the judicial review application;

2. evidence that addresses issues of procedural fairness, for example, procedural defects in the decision-making process that are not found in the record; and

3. evidence that highlights the complete absence of evidence before the decision-maker

For example, in circumstances where there has been professional negligence by a former representative resulting in the processing of your application being procedurally unfair, evidence attesting to these circumstances may be admitted.

In circumstances where you have additional evidence addressing the concerns in your refusal letter, but this evidence cannot be submitted in a Judicial Review application, resubmitting your initial application with this evidence may be a better option.

If you’ve received a refusal on your immigration application and are contemplating challenging the decision and/or if you have questions about what evidence you can include in the Judicial Review process, contact our team today.

Our experienced team of lawyers and legal professionals can advise on what options may be available to you.