Can I Appeal a Refused Study Permit or Visa Application?

The short answer is “No,” however there is still an option when a study permit or visa application has been refused.

Applications for Canadian immigration always have a remedy for an officer’s decision to refuse the application. However, the option to seek a remedy is usually not an “appeal.”

Canadian Immigration Appeal Rights at the Immigration and Refugee Board

The right to appeal a decision on a Canadian immigration application stems from section 63 of IRPA, the Immigration and Refugee Protection Act. This section of the law gives an extremely limited group of people (usually permanent residents of Canada) the right to dispute a refusal by appealing it to the Immigration and Refugee Board of Canada.

However, refusals on applications like work permits, study permits, visitor visas, temporary resident permits, and even In-Canada sponsorships DO NOT allow the right of appeal. If one of these applications is refused, then the applicant has the right to ask the Federal Court to review the decision. This is called “Judicial Review.”

Judicial Review – a Constitutional Right for Refusals

If your application for a study permit, visitor visa, or work permit is refused, then you can ask the Federal Court to review the decision and determine whether the decision was reasonable. An application for Judicial Review has two steps:

1. Step 1 is the application for “leave.” If you are seeking leave for judicial review, then you are asking the court for permission to bring your case to them. The court does not hear any case simply because there is a refusal.
2. Step 2 is the actual request for judicial review of the case. If leave is granted, then the court will hear the applicant’s argument that the officer’s decision to refuse the application was unfair.

The federal court can determine that a refusal of an immigration application was unfair for the following reasons:

1. An error in law (the decision did not follow the law)
2. An error in fact (the decision did not take into account facts and evidence which were presented)
3. An error in law and fact
4. The decision was patently unreasonable

If an application for a study permit, visitor visa, work permit, inland sponsorship, or any other type of application which does not allow for the right of appeal is refused, then the applicant has the right to ask the court to review the decision.

How To Win a Judicial Review

If the court finds that the decision was made incorrectly, the application will be returned to the visa office and will go back into processing for a different officer to make a decision. Even if the applicant won at the Federal Court, the application could still be refused for a different reason. Because of this, it is extremely important that if your application is refused, you consider if it would be in your best interest to submit a new application or take the fight to court.

If an application has less than excellent supporting documents, or if the arguments are not completely sound, it is almost certainly in the applicant’s best interest to submit a new application to address the officer’s concerns in the refusal letter rather than seeking leave for judicial review. A new application can be approved because it has addressed all of the gaps and problems in the original application, even though the original application was refused. If you are unsure why the application was refused because the reasoning was not clear in the refusal letter, then you can apply for the officer’s notes in the GCMS system for the detailed reasons for refusal.

Given the cost of an application for leave for judicial review, which typically starts around CAD$7,000, it is in the applicant’s best interest to be sure that they are right and that the court is likely to agree before proceeding. Sometimes, there is no other option besides judicial review as a new application cannot likely overcome a singular and highly discretionary reason for refusal such as “I do not believe you will leave Canada at the end of your stay due to the purpose of your visit.” If your application has already addressed all concerns at length and with substantial evidence, there is a good chance you will never come to Canada unless you seek leave for judicial review.

Contact us if your immigration application has been refused.