After a refusal: reconsideration, reapplying, or judicial review

What separates the three routes

The first two stay inside IRCC. The same kind of officer reads the file and makes the call. Judicial review leaves that system and puts the decision itself in front of the Federal Court.

Whether reconsideration helps depends on the category

A common line is that if the officer clearly got it wrong, you can ask for reconsideration. There is nothing wrong with the sentence itself. What goes wrong is treating it as one conclusion that covers every category.

It comes down to whether the refusal letter contains an error someone can point to. Letters in the first group tend to say something concrete, concrete enough that you can put a finger on a line and say this provision does not apply here. Letters in the second group cycle through the same few sentences and never land anywhere specific.

Three more things about reconsideration, from practice rather than from any published rule:

• There is no service standard. Nothing is promised about when an answer comes.
• Whether it is taken up, and whether the decision changes, both sit within the officer's discretion.
• Reapplying is generally faster than reconsideration.

So even in the category where it is worth trying first, there is a calculation to do first: whether your own status and plans can absorb the wait.

A refused family visit: the order matters

At IRCC a visit to family is not its own category. It is a temporary resident visa, the same as a tourist visa, assessed under the same logic and the same standard. Many people take them for two different things.

First, check whether the file really was airtight. An applicant believing there was nothing wrong with it is not the same as there being nothing wrong with it. "The officer refused it for no reason" and "there was a hole in the file" look identical on a refusal letter, because both produce the same template sentences. Rule out the second before discussing remedies.

Second, once the file really was in good shape, then judicial review is the conversation. Reconsideration in this category generally does not achieve much, for the reason above.

Reverse that order and the cost is concrete: conclude the officer was simply wrong, head straight for a remedy, and find halfway through that the problem was in your own file, with time and money already spent.

Judicial review: the tightest deadline, and leave comes first

The deadline is in IRPA s.72(2)(b):

… 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

Two numbers: 15 days where the matter arose in Canada, 60 days where it arose outside Canada.

The start point is easy to misread. The provision runs from the day the applicant is notified of, or otherwise becomes aware of, the matter, not from the date printed on the refusal letter. In practice those two dates are often several days apart, and 15 days does not have several days to spare.

The first step in judicial review is an application for leave. Filing does not mean the Court begins hearing the case. The Court has to grant leave before it goes further.

The same section carries several other points worth knowing:

• Judicial review cannot be sought until any right of appeal under the Act has been exhausted.
• A judge may, for special reasons, allow an extended time for filing and serving.
• A judge shall dispose of such an application without delay and in a summary way and, unless otherwise directed, without personal appearance.
• No appeal lies from the Court's decision on the application or on an interlocutory judgment.

The extension provision is not a fallback. It says a judge may. Whether it is granted turns on how the judge views the special reasons put forward.

Choosing among the three

There is only one order to the judgment: first work out whether the problem is a hole in the file or the decision itself. Skip that step and every route after it is a guess.

• There is genuinely something to improve in the file: reapply. In most cases this is also the fastest route.
• The officer made an identifiable error and it is not a visitor-visa type refusal: reconsideration is worth trying first.
• The file really was in good shape and the problem lies with the decision: judicial review, and start by counting how many days are left.

Watch how the clock runs. Of the three, only judicial review has a deadline set out in the legislation, and it is the least widely known of the three. During the few days spent deciding whether to try reconsideration first, the 15 or 60 days are already running. Waiting for a reconsideration result before deciding whether to go to Court does not stop that clock.

There is also status to account for separately where an inland application is refused. That is its own matter: see maintained status and the 90-day window to restore status.

The hard part is the first step

Each route has its own rules, and those rules can be looked up. They are in the legislation and on official pages. What is hard is the one judgment that has to be right in the first few days after a refusal: what is actually wrong with this application.

The reason written on the refusal letter and the real problem with the application are often not the same thing. Working out whether the decision itself holds up means establishing which provision the officer relied on, whether that provision applies to this category, and whether there was something in the file the officer did not see. Reading all of that takes time.

The two kinds of mistake also cost differently. Miss a problem in the file and a fresh application is still a chance to fix it. Miss the 15 days and getting back to Court means persuading a judge that special reasons exist.

To go through the reasons in the refusal letter alongside your own file before doing anything, consultation rates are here.

Common questions