You filed for judicial review of a refused application, and you were bracing for months of waiting and a hearing in Federal Court. Then your lawyer calls with something you did not expect. Counsel for the Minister has written to say they are prepared to settle. The decision will be set aside, and your file will go back to IRCC to be decided again.
For many applicants this is the outcome they were hoping for, and it can arrive surprisingly early in the process. Here is how it happens, what it does and does not mean, and how to make the most of it.
Why the government settles
Once an application for leave and judicial review is filed and served, it is assigned to counsel at the Department of Justice. Their first task is to review the decision and the record and form a view on whether the decision can be defended.
Department of Justice counsel are not there to defend every refusal. Where the officer’s reasons are thin, where evidence was overlooked, where a procedural fairness letter should have been sent and was not, or where the law has moved since the decision, counsel may conclude that the Court is likely to set the decision aside. Rather than spend the resources on a hearing they expect to lose, they offer to consent to the same result.
Settlement is also more likely where the applicant’s memorandum has identified a clear, specific error. A well-argued leave application does two jobs: it addresses the judge, and it shows the lawyer on the other side that the case is not worth fighting.
What a settlement looks like
The typical settlement has three parts:
- The decision is set aside. The refusal is treated as though it never happened.
- The matter is returned for redetermination. A different officer will decide the application afresh.
- The applicant may file updated materials. The settlement usually allows a period, often 30 to 60 days, for the applicant to submit new documents and submissions before the file is redetermined.
The parties file a consent to the Court, and the Court issues an order on those terms. The judicial review is then discontinued. No hearing takes place and no judge rules on the merits.
What settlement does not mean
Settlement is not approval. The file goes back to be decided again, and the new officer is free to refuse it, provided they do so reasonably and for reasons that survive scrutiny. A second refusal on the same grounds, ignoring the same evidence, would invite a second judicial review, and officers know that. But an applicant who treats the settlement as a formality and sends the file back unchanged is taking a risk.
Settlement also does not mean the government has admitted the officer was wrong. Consent orders are usually made without any admission. That is rarely a problem in practice, but it explains why the letter you receive may be carefully worded.
Using the redetermination window well
The period for updated submissions is the most valuable part of a settlement, and it is often underused.
Think about why the application was refused, even if the officer’s reasoning was flawed. If the officer doubted the genuineness of a relationship, the redetermination is the moment to file the evidence that removes the doubt. If proof of funds was questioned, file current statements with an explanation of any large deposits. If a document was missing, provide it with a covering letter that makes clear it is now in the file.
Also consider what has changed since the original application. Time has passed. Circumstances may be different. Updated employment letters, new language results, a child born since the last submission, all of these can be added.
Submissions at this stage should be organised, clearly labelled, and framed around the concerns that led to the refusal. The new officer will read the previous decision, the court file, and your new materials. Make it easy for them to reach a different conclusion.
If no offer comes
Not every case settles. Where the Department of Justice believes the decision was reasonable, it will file a memorandum defending it and the case proceeds to a leave decision. That is not a sign the case is weak. It means the argument will be made to a judge instead. We describe the full process in our post on judicial review at the Federal Court.
Settlement offers can also arrive later, after leave is granted and closer to the hearing, once counsel has seen the certified tribunal record. The door does not close at the leave stage.
Getting there
The path to a settlement runs through a strong leave application. That means a properly assembled record, an affidavit that sets out the facts cleanly, and a memorandum that identifies a specific, reviewable error rather than a general complaint about the outcome.
If your application has been refused and you are considering judicial review, book a consultation with Kabir & Alam Lawyers. Our immigration litigation practice prepares these applications with the aim of resolving them at the earliest stage possible.