Federal Court offers bar, litigants expedited ‘no-hearing’ judicial review for study permit refusals

Law360 Canada (September 27, 2024, 3:38 PM EDT) -- In an effort to speed up the judicial review of hundreds of study permit refusals as the Federal Court also contends with thousands of other immigration cases, the national trial court is offering parties who opt into a new pilot project a “simplified” no-hearing, in-writing-only procedure where judges will simultaneously decide a JR leave application and the JR’s merits, and do so within five months rather than the 14 to 18 months usually required for a final decision under the general procedure.

As it rolled out its “study permit pilot project” initiative, the short-staffed and under-resourced Federal Court explained it is facing its third record-breaking year for new immigration proceedings.

“The court anticipates receiving 24,000 filings in this area alone this year, which is four times the average for the five-year period immediately preceding the COVID-19 pandemic,” the itinerant court said in its Sept. 26, 2024, announcement of the pilot project.

Demand for judicial review of immigration and refugee decisions has surged in recent years, but the Federal Court’s complement of judges has grown by a fraction of that increase, “maybe not even 10 per cent since 2017-18,” Federal Court Chief Justice Paul Crampton told Law360 Canada.  

“So we just need to find new and better ways of dealing with things,” the chief justice observed. “We don’t have any other choice.”

The chief justice said there are hundreds of study permit refusals each year (he estimated 1,500 to 2,000). That number is set to grow as web-based tools under development in the private sector are expected to reduce the cost of hiring someone to assist in getting the permit from around $2,000 to around $500. “So this is going to be a game changer, and we need to be ready for it,” Chief Justice Crampton said.

Depending on how many applicants opt in, the court expects to deal with about 200 cases initially through its pilot project The advantages to the streamlined no-hearing simplified procedure include lower costs for both parties and the possibility for students to get a judicial review decision on the permit denial in the same academic year that they filed their application for the permit, according to the court.

For parties who choose to participate in the pilot project, there are three possible outcomes for their cases. The court will either:

• dismiss leave and the JR application (without reasons);
• grant leave and deny the JR application (with reasons); or
• grant leave and the JR application on the merits (with reasons).

The court said it is “committed to improving access to justice by reducing the time” between filing a leave application for the denial of a study permit and the JR’s outcome.

The pilot project aims to do this by reducing steps in the process, requiring fewer documents to be filed, eliminating the need for a hearing, focusing on non-complex matters and working “in partnership” with members of the court’s immigration bar liaison committee and with Justice Canada/IRCC.

The court said that in order to participate in the “streamlined” process to judicially review a study permit application refused by an Immigration, Refugee and Citizenship Canada (IRCC) visa officer (and any temporary residence visa application associated with the study permit application), both the applicant and the respondent Minister of Citizenship and Immigration must agree to opt into the pilot project.

As well, both parties must agree on the underlying facts, as evidenced by the student’s application materials submitted to IRCC, along with the full reasons for IRCC’s decision.

The court’s four-page simplified submissions form replaces all documents that include affidavits and written submissions, i.e., the applicant’s record and reply memorandum and the respondent’s record.  

To be eligible for the pilot project, the case may not be complex (e.g. there are no factual or legal issues of inadmissibility or national security and there is no request for a certified question of law). Also, the applicant is not asking for an extension of time to file the leave application, the parties are not filing affidavits (which are used to introduce new evidence) and IRCC has supplied a simplified certified tribunal record.

All documents for the pilot project must be filed via the Federal Court’s e-filing portal.

The court’s notice to the profession includes links to a useful step-by-step guide and specific timeframes for each step in the streamlined process, a slide presentation, and frequently asked questions.

The court also prepared a 17-minute video presentation by immigration law practitioners and Federal Court Justice Alan Diner, who led the working group on the pilot project.

Notably, either party can request to transfer the case to the general procedure (via a motion in writing under Federal Court Rule 369) — but only before the respondent minister files their simplified submissions

The court may also choose to transfer the case to the general procedure.

Photos of Chief Justice Paul Crampton and Justice Alan Diner: Balfour.

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