Streamlined Judicial Review Now Available For Refused Study Permits

The pilot project aims to reduce the time it takes for eligible study permit application rejection reviews from 14-18 months to just five months. It streamlines the process so that the judge can rule on leave for the review and perform the judicial review at the same time. The pilot is aimed at addressing a significant backlog caused by a large increase in the volume of applications for judicial review. The first nine months of 2024 has seen more applications than any full year over the previous three decades.

Key Takeaways

• Eligible applicants may see significant time and cost savings on judicial review of rejected study permits from October 1, 2024, if this pilot project achieves its aims. 
• Certain criteria must be met for prospective students to participate in the streamlined review process. 
• There is no additional cost to participate in this pilot project, so the application fee is $50.   
• It is unclear from the announcement whether applicants outside Canada still need to provide in-Canada contact details, which has historically limited access to Judicial Review.

What Is Judicial Review? 

Judicial review in Canada is a process where courts review decisions made by government bodies, like Immigration, Refugees and Citizenship Canada (IRCC), to ensure they are fair and legal.

For example, if you applied for a study permit that was refused, and the decision made by the officer doesn’t follow Canadian law or is unreasonable, you can ask the Federal Court to analyse the facts of the case to determine whether the decision was correctly rendered. 

In Judicial Review proceedings, the court will not re-examine your case from scratch, or consider new evidence or documentation. Rather, the court will check if the decision was made properly according to applicable laws and the information available to the officer at the time of assessment. If the court finds a mistake was made in rendering the refusal, it can order the decision to be reconsidered. 

This is important because it ensures fairness in government decisions, especially for people going through immigration processes.

Why Is There a Need For The Study Permit Pilot Program? 

This pilot program comes following a turbulent year for prospective international students who have historically experienced high and disproportional refusal rates

According to the Federal Court document announcing the Pilot Program, the federal court is on track to receive 24,000 immigration filings by the end of December 2024, approximately four times the yearly average the Court experienced in the five years immediately preceding the COVID-19 pandemic. 

The Pilot Program is being introduced in an attempt to better handle this surge of immigration filings.

The Federal Court published a video showcasing the new pilot program. This can be viewed here. 

Criteria For Participation In The Pilot

There are fairly significant qualifying criteria for prospective students who want to participate in the streamlined pilot process. These include some relatively straightforward criteria, such as that a study permit application has been rejected and that IRCC and the student agree to participate in the pilot. 

However, there are other complicating criteria, such as: 

• Both parties must agree to opt-in to the pilot program;
• The parties must agree on the underlying facts, as evidenced by the application materials submitted to IRCC by the Applicant, including the full reasons for the IRCC decision;  
• The case is not complex (e.g. no factual or legal issues of inadmissibility or national security and no request for a certified question);  
• The applicant does not request an extension of time to file the Application for Leave;  
• The parties do not file affidavits; and  
• IRCC has supplied a Simplified Certified Tribunal Record.

How Will The Process Be Different In These Applications? 

There are a few procedural changes that should result in significant cost savings for these applications. For example, if you choose to participate in this pilot, you will not need to attend any hearings. 

Instead, you will send all your documents to the Federal Court and a judge will make their decision after reading your arguments and those put forward by IRCC. The judge will then let you know, in writing, about their decision. 

There are also very strict deadlines for submitting these applications. You need to follow the Federal Court’s process to opt in (it is not automatic), and you have to meet very strict deadlines. For students who applied for their study permit in Canada, you must apply within 15 days from the date you receive your study permit rejection. It’s 60 days for those who applied from outside Canada. 

The Federal Court’s Checklist For Participation

The Federal Court provided this checklist for participating in the pilot program: 

Before Filing the Application for Leave and Judicial Review, be sure to go review this list:  

1. Has my study permit application been refused by an IRCC Visa Officer?  
2. Was I in Canada when I received my study permit refusal? If so, am I filing my Application for Leave and Judicial Review within 15 days of my permit being refused?  
3. Was I outside Canada when I received my study permit refusal? If so, am I filing my Application for Leave and Judicial Review within 60 days of my permit being refused?  
4. Do I meet the criteria for the Study Permit Pilot Project?  
5. Did I opt into the Study Permit Pilot Project?
6. Did I include my Study Permit Application Number and Unique Client Identifier (UCI) from IRCC in my Application for Leave and for Judicial Review? 

How Can Applicants Opt-In To The Pilot Program? 

On filing the application, the applicant must indicate in their application form their agreement to opt-in to the Study Permit Pilot Program.

It is not clear from the announcement how IRCC agrees to processing under the Study Permit Pilot Program.

Do You Need A Representative To Apply For Judicial Review? 

No, applicants do not need a representative to act on their behalf in a Judicial Review application, but given the complexity of Judicial Review applications and the limited opportunity to represent the matter for review, applicants may wish to consult with a Canadian immigration lawyer to understand their options. 

Only Canadian immigration lawyers can apply and represent you in a Judicial Review application. Regulated Canadian immigration consultants cannot represent you before the Federal Court. 

In some cases, the applicant may not have an option but to use a Canadian immigration lawyer to represent them in a Judicial Review application.

As part of the Judicial Review application processes, the applicant is required to provide in- Canada contact details, which may pose a significant stumbling block for many out-of-Canada applicants. 

It has meant that out-of-Canada applicants had to use a Canadian lawyer, limiting access to Judicial Review to those who could afford representation. There is nothing in the announcement of the new Pilot Program that suggests this has changed, therefore out-of-Canada applicants may still need a representative to file on their behalf. 

If you have received a refusal and are interested in exploring your options for Judicial Review, we recommend that you seek legal advice to examine your options.