Date: 20210602

Docket: IMM-3675-20

Citation: 2021 FC 522

Toronto, Ontario, June 2, 2021

PRESENT: Mr. Justice Diner

BETWEEN:

PHAM THI THU THUY

Applicant

And

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I. Overview

[1] The Applicant seeks judicial review of a decision by an Immigration, Refugees and Citizenship Canada (“IRCC”) visa officer (“Officer”) to refuse her application for permanent residence in Canada under the Prince Edward Island Provincial Nominee Program (“PEI PNP”) 100% Ownership Stream (“Ownership Stream”). The Officer based the refusal on the basis that the Applicant “would be unlikely to reside in the nominating province if a permanent resident visa were issued.” For the reasons that follow, I find that the Officer’s decision was unreasonable.

II. Background

[2] The Applicant is a citizen of Vietnam, married with two children. She is Vice Director and a 50% shareholder of a company involved in the wholesale trade of construction materials. The Applicant is also the Chief Accountant and 30% shareholder in a second company involved in the construction and installation of swimming pool equipment.

[3] In February 2017, the Applicant applied for provincial nomination under the PEI PNP’s Ownership Stream. The underlying Agreement for Canada-Prince Edward Island Co-Operation on Immigration [Canada-PEI Agreement] established the framework for the PEI PNP program, although the specific rules under the various streams were developed by the province.

[4] In November 2017, the Applicant visited PEI for approximately ten days on an exploratory trip. On January 31, 2018, PEI nominated her under its Ownership Stream. In April 2018, the Applicant submitted an application for permanent residence to IRCC based on PEI’s nomination. She included in her application, among other information regarding her plans to immigrate, a one-page “Executive Summary” outlining her intention to move to PEI to open a retail business specializing in construction and maintenance of pools, spas, saunas, and related supplies. The proposed business was consistent with her business activities in Vietnam.

[5] On January 15, 2020, the Applicant attended an immigration interview in Ho Chi Minh City with the Officer. In the interview, the Officer repeatedly asked the Applicant if she had a business plan, explaining that a business plan was “something you write on paper”, and which “includes all the relevant information – such as suppliers, costs, competitors, market demand, marketing strategies – that describe in detail how a new business will survive and become profitable.”

[6] The Applicant pointed the Officer to the Executive Summary of her business plan and provided further details about the proposed business in her interview. However, the Officer did not accept the Executive Summary as a business plan and was not satisfied with the Applicant’s answers.

[7] The Officer expressed concern, in the notes entered into the Global Case Management System (“GCMS Notes”), that the Executive Summary is “a one-page document that provides little objective information, and is in an exact format and style that has been observed on a number of provincial nominee files in this office.” The Officer also expressed concerns about the way in which the Applicant answered questions in their interview, stating that she at times disregarded questions and gave answers that sounded unrelated, rehearsed or memorized.

[8] At the end of the interview, the Officer informed the Applicant that her application seemed to fit a pattern of fraudulent PEI PNP applications, whereby applicants claimed an intent to open a business in PEI but did not follow through after receiving their permanent residence visas. The Applicant responded that she was “not sure about other people” but her intention was to open a business and reside in PEI with her family.

[9] After the interview, the Officer sent a pre-refusal letter to PEI immigration authorities.. In the letter, the Officer stated that “[o]n the whole, I find it unlikely that the applicant intends to follow through with the plan to open a retail business as stated and therefore I cannot be satisfied that she intends to reside on PEI. I find it more likely that she is simply seeking permanent resident status in Canada for the family so that they can enjoy certain privileges, such as education for their children, etc.” The province did not respond.

III. Decision under Review

[10] The Officer refused the application in a May 1, 2020 letter (“Refusal Letter”), finding that the Applicant had not met the requirements of immigration to Canada under the PEI PNP. The Officer determined that the Applicant was unlikely to reside in PEI if she received a permanent resident visa, contrary to paragraph 87(2)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations], which requires an intent to reside in the nominating province. The Officer advised the Applicant that the “factors leading to this determination were outlined to you at an interview held in Ho Chi Minh City on January 15, 2020. Your responses to these concerns were considered in full, but the conclusion is that they do not offset the factors weighing against you.”

IV. Issues and Standard of Review

[11] The Applicant originally raised six issues in her written memorandum, but reduced them to three at the hearing.

[12] First, she argued that the Decision did not meet the standard of reasonableness on several fronts, including findings about the deficiency of her (i) responsiveness to interview questions, (ii) business plan, and (iii) legitimacy in light of program fraud.

[13] Second, the Applicant argued that the Officer, in finding that the Applicant did not have the intention to reside in PEI, unreasonably failed to heed the requirements of the Canada-PEI Agreement and the strong presumption set out therein regarding the provincial determination.

[14] Third, the Applicant argued that proper statutory interpretation required the Officer, in substituting the negative decision for that of the province due to residency intent, to obtain the concurrence of a second (federal) visa officer, which did not occur.

[15] The standard of review that applies to a visa officer’s decision on a permanent resident application under a provincial nominee program (“PNP”) is that of reasonableness. The Supreme Court of Canada’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], which set out a revised framework to determine the standard of review, provides no reason to depart from the reasonableness standard followed in previous case law: Bano v Canada (Citizenship and Immigration), 2020 FC 568 at para 13.

[16] A “reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85). Overall, “the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov at para 100). Furthermore, “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies” (Vavilov at para 86).

V. Analysis

A. Was the Officer’s Decision regarding the Applicant’s lack of intent to reside in PEI reasonable?

[17] The Officer based the determination of the Applicant’s lack of intent to reside on three principal findings, as outlined above. I agree with the Applicant that each of the three was flawed. First, the Officer unreasonably found that the Applicant was not responsive to the questions asked. Second, the Officer unreasonably found that the business plan the Applicant provided was deficient. Third, the Officer noted that there was a high incidence of fraud in the PEI PNP and stated that the application fit this pattern, but failed to provide justifications to support this conclusion. I will discuss each of the three flawed findings in turn.

i. The Applicant was responsive to questions being asked

[18] The Officer’s finding that the Applicant lost credibility after providing “rehearsed” and “memorized” answers is not supported by the Officer’s GCMS notes, which form part of the Decision under review. That GCMS notes form part of a Decision is well established in the jurisprudence: Hungbeke v Canada (Citizenship and Immigration), 2020 FC 955 at para 51; Thedchanamoorthy v Canada (Citizenship and Immigration), 2018 FC 690 at para 17.

[19] The Officer provided two examples of the Applicant’s “strong tendency” to “disregard the questions being asked and instead [to] recount rehearsed/memorized facts that did not address the questions.” The first example in the GCMS notes is provided as follows:

[W]hen asked about the purpose of a previous trip to Canada (specifically to Ontario and BC) the applicant answered as follows: ‘I have been to many big cities but when I returned to [Vietnam], through my agent and through the internet I found that I preferred PEI because the living environment is very clean and the housing and living cost is affordable compared to other parts of Canada, and they have good schools for my children, so that’s why I chose PEI as a destination.’ The overall impression was that the applicant was relying heavily on memorized statements and that the applicant lacked sincerity.

[20] The second example that the Officer provides of the Applicant’s unresponsiveness concerned her answer about how many people in PEI have a swimming pool. The Applicant answered as follows:

From what I know PEI is a small province. The population in 2019 is 116,000 people, around 39 households [confirm with interpreter that this is what PA said]. So I think 1% of them have pools, so around 390, from small to big pools, from resorts to private owned. We plan to set up a business specializing in maintaining pools. So the number I just gave, 390 pools, it can be more or less than that. We plan to provide service for families who already have a pool and to build new ones for families who want them. About our maintenance services, we want to implement a new process for converting salt to chlorine. [I]t’s not too expensive, it costs about $2,500 and in Canada salt is cheaper than other chemicals so we think this plan might be possible. It will provide low-cost maintenance and it’s safer.

[21] The Officer stopped the Applicant and reminded her that the question related to “how many people in PEI have a pool.” The Officer then criticized the Applicant by saying that she responded with “a series of unrelated facts that [she] appear[s] to be reciting from memory.” The Officer then requested that the Applicant “just answer the questions as they are asked.” The GCMS notes record the Applicant’s answer and ensuing exchange as follows:

As I said earlier I estimate that 1% of the population in PEI has a pool. 390 pools is also not the exact number, it’s just my estimation. […] We estimate that one family has four people, so the population is equal to [39,000] households.[…] What makes you think 1% of households in PEI have a pool? Where do you get that number from? We traveled there for ten days, and based on what we saw the schools have a pool, the parks have pools, and private families with children have pools as well. So 1% from 39,000 is just an estimate. We only travelled in Charlottetown, we didn’t have a chance to travel further so we don’t have the exact number. It’s just a guess.

[22] The Officer responded by suggesting that the Applicant’s estimate “seems very imprecise” and that “if [the Applicant] wanted to set up this kind of business [she] would do some market research to determine what size of a market [she has] there and whether or not [her] business can survive” in PEI.

[23] The Officer’s GCMS notes then state that the Applicant had the following response:

Of course when I travelled there to prepare my business plan I had to research the market. My plan is to try to target old pools, to try to renovate those old pools, for example using stone to decorate to make it more beautiful. The number I gave you is just a reference based on newspapers. It’s not 100% accurate. I will also try to reach people who don’t have pools. For those who have pools we will try to focus on water processing and right now people are using chlorine. We will market a new machine that creates chlorine, which is safer.

[24] At this point, the Officer stopped the Applicant anew, and suggested that she was again reciting memorized information and rehearsed facts not relevant to the question. The Officer again asked the Applicant to address the questions being asked.

[25] I find the Officer’s conclusion that the Applicant showed a strong tendency to disregard the questions is unreasonable and unsupported on the record. The above exchanges show that, rather than providing “unrelated” information about how many pools there are in PEI, the Applicant provided both an estimate and an explanation about how she arrived at her estimations.

ii. The Applicant provided and explained the plan for her business

[26] The Officer faulted the Applicant for not providing a “proper” business plan, which the Officer defined as “something you write on paper”, and which “includes all the relevant information – such as suppliers, costs, competitors, market demand, marketing strategies – that describe in detail how a new business will survive and become profitable.” The Officer found the Applicant’s one-page Executive Summary did not suffice. The Officer explained the issues with the business plan in the pre-refusal letter to the province as follows:

[T]he applicant was not persuasive in explaining how the proposed business would fare in the PEI market. The applicant was unable to produce a written business plan and I note that the ‘Executive Summary’ on our file is a one-page document that provides little objective information, and is in an exact format and style that has been observed on a number of provincial nominee files in this office. When pressed about the lack of a paper business plan, the applicant responded as follows: ‘Because I am the one who makes the business plan I remember everything; I don’t need to write it down.’ The applicant appeared to rely on unproven assumptions in making her plans, and on the whole I am of the view that she has not done sufficient preparation and does not have a satisfactory understanding of the market she is proposing to enter. On the whole, I find it unlikely that the applicant intends to follow through with the plan to open a retail business as stated and therefore I cannot be satisfied that she intends to reside on PEI.

[27] There are three problems with the Officer’s finding that the Applicant did not have a “proper” business plan: (i) the Applicant did in fact provide a written business plan, albeit brief – the Executive Summary, (ii) she provided further details about the plan in the interview, which the Officer criticized; and (iii) the Minister could not point to any established, formal requirements of a business plan required under the Ownership Stream.

[28] Further to the first point, the Executive Summary is a written, one-page document that provides the key details about the prospective PEI company, including its scope of service, location, office and warehouse space, capital investment, personnel requirements, and projected losses and profits for the first three years of operation.

[29] In addition to the Executive Summary, the Applicant provided responses to the Officer on various aspects of her business in Vietnam (in the same industry) and her plans for Canada, including much of the information the Officer criticized in his notes as being absent from the plan, such as costs, market demand, and marketing strategies. She named specific suppliers of her materials with whom she already did business in North America and overseas, and she named both competitors in the PEI market without any hesitation. She also noted that they charged much higher fees than those she proposed charging, and named their prices. The Officer did not address any of these details in the Decision, effectively disregarding them.

[30] Finally, I note that the Respondent was unable to point to anything that supported the Officer’s requirements of a business plan, which ultimately shaped the determination that the Applicant did not intend to establish her business in PEI. There was simply no evidence that the Ownership Stream’s requirements, general PEI PNP guidelines, or federal forms or rules required the provision of a particular kind of business plan.

[31] Thus, although some aspects of the Applicant’s knowledge of the PEI market were, in her own words, “just a guess”, the record does not support that the Officer’s finding that the Applicant did not have a business plan.

iii. The Officer failed to point to any specific indicia of fraud

[32] Finally, toward the end of the interview, according to the GCMS notes, the Officer informed the Applicant that “I will let you know that this program you have applied under is known to have a lot of fraud in it – where people claim they will open a business in PEI as a means of gaining status in [Canada] but then don’t follow through. Your application seems to fit that pattern and right now I simply don’t believe that you intend to set up this business or that you intend to live permanently in PEI.”

[33] The Applicant responded that she was “not sure about other people” but her intention was to open a business and reside in PEI with her family. The Officer noted her response as follows:

I have pictures here of my business in Vietnam and I hope that when I move to PEI it will be the same. So I am not sure about other people but my friend in PEI, she had a restaurant there and we still keep in contact and so the reason why I want to reside in PEI is for the clean living environment, affordable housing and cost of living, and good education. There is no reason for me to leave that place. And about my competitors, they are not too much, only two, and if I moved to a bigger place I wouldn’t stand a chance. And I already have 20 years experience in this business, so there is no reason to say this plan is impossible. The numbers I gave you are just estimates and I will have a more proper business plan. The old business plan I submitted with the application, I will have it replaced by a more proper one.

[34] The Respondent argues that while the Officer raised the “pattern of fraud” in the PEI PNP, nowhere does the record show that the Officer relied on this pattern as a factor in refusing the Applicant’s application. The Respondent contends that just because the Officer mentioned fraud does not mean that it served as a factor in the refusal.

[35] I disagree. The Officer clearly suggests that the Applicant’s application fits the pattern of fraud in the PEI PNP, which is one of the factors leading directly to the conclusion that she did not intend to reside in PEI, according to the Refusal Letter, where the Officer wrote that the “factors leading to this determination were outlined to you at your interview.” While the Officer advised the Applicant that her application fit the “pattern” of fraud, there was no mention of specifics regarding how she fit that pattern, or which aspects of her plans were fraudulent.

[36] The Officer’s Decision is unreasonable because, in light of the evidence on the record, it fails to meet the Vavilov criteria of justification, transparency, and intelligibility.

[37] Reasons must explain how and why a decision was made and show the parties that their arguments have been considered. It is not enough for the outcome of a decision to be justifiable. Rather, the reasons must set out why it is justified. Reasons cannot simply repeat statutory language, summarize arguments, and state a peremptory conclusion. Ultimately, the reviewing court must understand the rationale underlying a decision. The Officer’s explanation of the Applicant’s purported failure to answer questions, provide a “proper” business plan, or distinguish herself from an unidentified pattern of fraud fail to meet the Vavilov standard.

B. Was the Officer’s Decision reasonable vis-à-vis the presumption in the Canada-PEI Agreement?

[38] The Applicant contends that the Officer failed to recognize the purpose of the PEI PNP and failed to properly defer to the nominating province, contrary to the relevant legislation, the Canada-PEI Agreement, and precedent. Specifically, the Applicant argues that the Officer ignored the presumptions in Annex A of the Canada-PEI Agreement, which state that Canada will consider a nomination issued by PEI as (i) a determination that admission is of benefit to the economic development of the province, and (ii) a reflection that PEI has conducted due diligence to ensure that the applicant is likely to become economically established.

[39] The Applicant cites the case of Hassan v Canada (Immigration, Refugees and Citizenship), 2019 FC 1096 [Hassan], in which Justice Fothergill found that the Canada-PEI Agreement created a strong presumption that a nomination from the province to apply under the PEI PNP suggests that the Applicant had satisfied the program’s requirements. Justice Fothergill noted in Hassan that in Kikeshian v Canada (Citizenship and Immigration), 2011 FC 658 at para 14, the Department’s Operation Manual recognized that a provincial nomination creates a presumption that the applicant will be able to become economically established in Canada, and that the specific language of the Canada-PEI Agreement distinguish it from language found in certain other provinces’ PNP agreements.

[40] The Respondent counters that the Officer refused the Applicant’s visa not on the basis of the likelihood of her economic establishment in Canada (as was the case in Hassan), but rather on a perceived lack of residency intent. As mentioned above, the Officer advised the province that “[o]n the whole, I find it unlikely that the applicant intends to follow through with the plan to open a retail business as stated and therefore I cannot be satisfied that she intends to reside in PEI.”

[41] Once again, the Respondent has not persuaded me that the Officer’s rationale is reasonable. While I agree that the Officer ostensibly faulted the Applicant on her intention to move to PEI, this concern was rooted entirely on the alleged weaknesses in her plan to become economically established in Canada. In this way, the Officer’s concern about the Applicant’s intention to reside overlapped with whether she had a legitimate business plan that would result in economic establishment in Canada.

[42] Intention is notoriously difficult to ascertain because of its inherently subjective nature. Assessment of intention may take into account “present circumstances, and future plans, as best as can be ascertained from the available evidence and context” (Dhaliwal v Canada, 2016 FC 131 at para 31; see also Rabbani v Canada (Citizenship and Immigration), 2020 FC 257 at para 43). Here, to use the language of Vavilov, the Officer provided circular reasoning and logical fallacies in explaining the finding that the Applicant had no intention to establish herself in PEI, based on alleged deficiencies in her business plan. I have already explained the three reasons why that conclusion of a deficiency was based on reviewable errors.

[43] I agree with the Applicant that the weakness in the Officer’s rationale is heightened in light of Hassan. There, the Officer did not address PEI’s determination on residence or intent, let alone rebut it. Justice Fothergill wrote:

[17] Mr. Hassan emphasizes the mandatory language in s 3.9 of Annex A to the Agreement. Under this provision, Canada must consider a Certificate of Nomination issued by PEI as determinative of two factual matters: (a) that admission of the applicant is beneficial to the economic development of PEI; and (b) that PEI has conducted due diligence to ensure that the applicant has the ability and is likely to become economically established in PEI.

[18] The strong language contained in s 3.9 may be contrasted with the weaker language found in immigration agreements between Canada and other provinces. For example, s 4.9 of Annex A to the Canada-Saskatchewan Immigration Agreement, 2005 states that “Canada shall consider a nomination certificate […] as initial evidence”. Similarly, s 4.11 of Annex A to the Canada-Ontario Immigration Agreement explicitly reserves to federal visa officers the right to request additional documents from provincial nominees and substitute evaluations under s 87(3) of the Regulations.

[…]

[22] Neither the refusal letter nor the GCMS notes make any mention of s 3.9 of Annex A to the Agreement. Nor do they mention Canada’s agreement to consider a Certificate of Nomination issued by PEI as a determination that Mr. Hassan’s admission is of benefit to PEI’s economic development. Nor do they acknowledge that, by virtue of the Agreement, PEI is deemed to have conducted due diligence to ensure that Mr. Hassan has the ability and is likely to become economically established in PEI.

[23] I do not foreclose the possibility that, in appropriate circumstances, federal officials may be able to rebut the strong presumption created by the Agreement and substitute their own evaluation of an individual nominated by PEI. However, in this case the Officer failed to acknowledge the mandatory language of s 3.9 of Annex A to the Agreement, and conduct the analysis in accordance with the prescribed standard.

[44] Thus, in substituting the evaluation for that of a nominating province, the Officer must consider the terms agreed to by Canada and that province, and conduct the analysis accordingly (Hassan at para 2). This principle is further supported by the Department’s Operation Manual, entitled “OP 7-B Provincial Nominees”, which provides the following direction to federal officers about refusal of provincial nominees:

7.8 Refusing the application

There are three bases upon which a provincial nominee who meets all statutory admissibility requirements can be refused a visa:

• The officer has reason to believe that the applicant does not intend to live in the province that has nominated them;

• The officer has reason to believe that the applicant is unlikely to be able to successfully establish economically in Canada; and

• The officer has reason to believe that the applicant is participating in, or intends to participate in, a passive investment or an immigration-linked investment scheme as defined in R87(5) to R87(9) of the Regulations.

In each case, the officer must have some evidence to support this belief and overcome the presumption implied by the provincial nomination. Every provincial nominee agreement requires the immigration officer to consult with an official of the nominating province regarding the intention to refuse before the refusal is actually made.

[Emphasis added.]

[45] Here, the Officer’s underlying reasons, discussed above, mean that support for the Officer’s refusal was flawed. Compounding the error is the fact that the Officer failed to make any mention of the Canada-PEI Agreement, contrary to the ratio of Hassan.

[46] I note that this case was decided under the framework of a revised Canada-PEI Agreement, dated March 15, 2019, while Hassan was decided under its prior version (s. 3.9 of Annex A, as above). The language in Annex A of the updated Canada-PEI Agreement, which applied when the Officer issued the Decision on May 1, 2020, continues to provide the “strong” language regarding PEI’s determination to provide a nomination noted by Justice Fothergill in Hassan. Moreover, if anything, the new provision is stronger. It had read under the previous agreement, as it applied in Hassan, as follows:

[47] The equivalent portion of the 2019 version of the Canada-PEI Agreement (still current today) reads:

[48] The prior version’s section 3.9 did not mention the underlined part of the new section 4.2 of the Canada-PEI Agreement, which of course includes intention to reside in the province, as stipulated throughout that agreement. In failing to mention the strong presumption of the PEI nomination stipulated in sections 4.1 and 4.2 of the agreement, and to explain why the province erred in its determination of the Applicant’s intention – at least on any justifiable ground – the Officer committed a reviewable error.

C. Did the Officer err by failing to obtain the concurrence of a second officer before refusing the application?

[49] The Applicant’s counsel conceded in oral argument that, should I find in the Applicant’s favour on either or both of the first two issues, there would be no need to pronounce on the third issue, given its subsidiary treatment in both the written and oral arguments. Given that this is exactly what I have done, I will make no finding on this alternate argument.

VI. Conclusion

[50] For all the reasons explained above, this application for judicial review is granted.

JUDGMENT in IMM-3675-20

THIS COURT’S JUDGMENT is that:

1. This application for judicial review is granted. The matter is sent back for redetermination by a different visa officer.

2. The parties did not propose any questions for certification and none arise.

3. There is no order as to costs.

“Alan S. Diner”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-3675-20
STYLE OF CAUSE:	PHAM THI THU THUY v THE RESPONDENT OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	HEARD BY VIDEOCONFERENCE
DATE OF HEARING:	May 13, 2021
JUDGMENT AND REASONS:	DINER J.
DATED:	JUNE 2, 2021

APPEARANCES:

Roderick H. Rogers, QC Sarah Walsh	For The Applicant
Sahand Farahanchi	For The Respondent

SOLICITORS OF RECORD:

Stewart McKelvey Barristers and Solicitors Halifax, Nova Scotia	For The Applicant
Attorney General of Canada Halifax, Nova Scotia	For The Respondent