Federal Court: You Can't Change Your Core Argument on Judicial Review
- Citation
- 2025 FC 1890
- Decided
- Court file
- IMM-21788-24
- Full judgment
- Read the decision
Case Law Overview
Karumendu v. Canada (Citizenship and Immigration), 2025 FC 1890
Applicants from Namibia, whose refugee claim based on a family inheritance dispute was denied, sought judicial review. They argued the Refugee Protection Division (RPD) failed to identify a persecution ground related to their son's sexuality, an issue only briefly mentioned in their initial documents.
Court Ruling
The Federal Court dismissed the application, affirming that a decision-maker cannot be faulted for not considering an issue that was not argued and did not perceptibly emerge from the evidence as a whole. The Court strongly criticized the attempt to relitigate the claim on entirely new grounds.
Key Quote from the Court
[T]he Court does not feel that the Applicants can ex post facto, that is once the Refugee Division decision has been rendered, change the nature of the argument they made to the tribunal based on one single sentence they took out of the file after fine tooth-combing it... the Refugee Division cannot be faulted for not deciding an issue that had not been argued and that did not emerge perceptibly from the evidence presented as a whole. (at para 30)
Expert Takeaways
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Consistency is Crucial Your case before a tribunal is the foundation. You cannot introduce a fundamentally new theory or core argument for the first time at judicial review. The Court reviews the decision that was made, not the one that could have been made with a different argument.
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Raise All Grounds Clearly While decision-makers have a duty to be inquisitive, especially with unrepresented claimants, they are not expected to build a case that the claimant themselves did not present. All potential grounds for your claim must be clearly raised and supported by evidence.
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Affidavit Integrity is Non-Negotiable Submitting a sworn affidavit with information known to be false or 'embellished' is a grave error. As seen in this case, it can lead to the entire affidavit being struck and severely damages the credibility of your case and counsel before the Court.
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State Protection is a High Bar In countries considered to be democracies, the onus is on the claimant to provide 'clear and convincing evidence' that they sought and were denied state protection, or that seeking it would be futile. A single attempt without follow-up is unlikely to meet this threshold.
There is a deadline on this
That is the window to file an Application for Leave and for Judicial Review at the Federal Court, counted from the day you were notified of the decision. An extension can be requested, but it is granted at the Court's discretion - it is not automatic.
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That combination is worth a proper look. It does not mean you have a case - only a lawyer reading your actual documents can say that - but it does mean the question is worth asking before your filing window closes.
Disclaimer
The information provided in this article is for general informational purposes only and does not constitute legal advice. Immigration law is complex and subject to change. For advice specific to your situation, please schedule a consultation with a qualified legal professional.
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Questions people ask after reading a case like this
Does this mean my own case will succeed?
No. Every application is decided on its own record. A reported decision shows how the Federal Court has reasoned about a particular kind of error - it does not predict the result of a different file. What it can tell you is whether the problem in your refusal is the kind of problem the Court has been willing to intervene on.
How long do I have to challenge a refusal?
Under the Immigration and Refugee Protection Act you generally have 15 days to file an Application for Leave and for Judicial Review if the decision was made inside Canada, and 60 days if it was made outside Canada, counted from when you were notified. The Court can extend that period, but an extension is discretionary - it is not automatic.
What actually happens at the Federal Court?
Judicial review has two stages. You file the application and a written record, and a judge decides on paper whether to grant leave - permission for the case to proceed. If leave is granted, there is a hearing. The Court does not re-decide your immigration application; it decides whether the officer's decision was reasonable and procedurally fair. If you succeed, the file is normally sent back to be decided again by a different officer.
Do I have to be in Canada to bring an application?
No. Applicants outside Canada regularly bring judicial review applications, which is why the longer 60-day deadline exists for decisions made abroad. Applicants are not normally required to attend in person.
What happens in the free 15-minute review?
You explain what was refused or delayed and when you were notified. We tell you whether your filing window is still open, which issues in the decision look arguable, and what the realistic options are - including reapplying instead of litigating, where that is the better route. There is no obligation to retain us afterwards.
More Refugee Claim / Asylum rulings
Federal Court Slams Refugee Board's 'Unreasonable' Credibility Findings
Federal Court: IRCC's Delays Cannot Justify Further Delays in Refugee PR Case
Federal Court: Failure to Prove Identity is Fatal to a Refugee Claim
Federal Court: Inconsistent Testimony Fatal to Refugee Credibility
Written by
Ali Dadkhah
Ali Dadkhah is a litigator whose practice is dedicated to challenging government decisions at the Federal Court of Canada. He specializes in judicial review, providing a crucial avenue for recourse for individuals and businesses who have faced unfair or unreasonable administrative outcomes. Bilingual legal support in English and Persian (Farsi)