To study in Canada, foreign nationals need to apply for a study permit. These permits are granted at the discretion of a visa officer who reviews your file. Whilst it is a great feeling to hear the news of a positive application outcome, many people have felt the disappointment of a rejected application.

What do I do next?

Study permit applications can be refused for several reasons. If your study permit is refused, you will get a letter from a visa officer stating the grounds for refusal. It is important to know what your options are in a case like this.

You can either re-apply, or you can “appeal” the decision – the technical term is “application for leave and judicial review”. In rare cases, where there is a clear and obvious error, a third option of “reconsideration” might be appropriate (Another post will cover reconsideration).

In either case, prior to taking any further action, it is best to know the reasons for the refusal. The refusal letters often do not include the reasons, which must be requested separately.

Applicants should know that the prospects of success on re-application is at best uncertain– particularly if you have not addressed the underlying issues and the findings in the prior refusal. Many people re-apply more than once, with no success. This is often because the underlying issue is not solved. Re-application is costly and time-consuming, and visa officers can easily see that your application has been rejected before, making it easy to reject it again if they are still not satisfied.

Should you pursue a judicial review?

An application for leave of judicial review with the Federal Court of Canada could be a promising avenue to pursue. This process requires you to file a notice of an application for leave and judicial review, receive the written reasons (unless you already have obtained those), and then file an Application Record. In the Application Record, you need to include all the evidence and arguments that would persuade a judge to render a decision in your favour.

This is an involved process, and your best bet is to hire an experienced lawyer to help you. It is a complicated process that would be difficult to pursue from abroad, without a representative physically present in Canada. Most importantly, your paid representative must be a barrister or solicitor to have a standing before the Court.

Going back to your rejected application, if due process was not followed by the IRCC, then you may have a good chance of success through a judicial review. Seeking consultation from a lawyer to assess the reasons, is an effective use of your time and money. If the lawyer makes the professional assessment that the visa officer did not assess your application properly, then you may have a case.

If you file the Application Record and the Court is satisfied that there are some merits to your argument, the Court may grant leave on your judicial review application. That means the Court wants to hear the argument in your case, in-person, at a hearing in the Federal Court. If the Federal Court agrees with your arguments at the hearing, then your application would be granted, and your matter would be returned for re-determination. If the Court denies your leave, or if you are not successful at the hearing following a court hearing, then your judicial review application is refused.

Advantages of seeking a Judicial Review Application.

There are several advantages to pursuing a judicial review application. First, if you are successful on judicial review of a refusal, your “clean” history with immigration is preserved. If this is your sole refusal, it is worth not having it.

Second, a successful judicial review sends a strong signal to the Visa Office. The Federal Court of Canada – and not just you – have decided the Visa Office had erred in refusing your study visa. While this does not mean the visa office cannot refuse your application again, it does highlight that a past refusal was set aside and was found unacceptable by the Court – not just you.

Third, at any point during the judicial review process, the Department of Justice (the Respondent in the Federal Court matter) may offer to settle the litigation. This is only at the discretion of the Department of Justice and only happens with the strongest of cases. If so, usually, the past refusal decision would be aside, the matter would return to the visa office to be redetermined by a different visa officer and, you will have an opportunity to update your application. If a settlement is reached, which happens mostly in the strongest of cases, it could save money, time, and resources.

An experienced and knowledgeable representative could be your biggest asset in Federal Court litigation. They can advise you – frankly – if your matter is worth pursuing to begin with. They can identify the appropriate cases to approach the Department of justice for settlement. Lastly, based on caselaw and legal knowledge, they can persuade a judge to rule in your favour.

If you want to discuss your recent study permit refusal, contact us, and book a consultation today.