Date: 20231005
Docket: IMM-3159-22
Citation: 2023 FC 1328
Toronto, Ontario, October 5, 2023
PRESENT: Justice Andrew D. Little
BETWEEN: |
SAEED JAMALI |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The applicant applied for a work permit under the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “IRPR”
). By decision dated March 28, 2022, an officer at the Embassy of Canada in Ankara, Turkey, refused to grant the work permit.
[2] In this application for judicial review, the applicant submitted that the officer’s decision should be set aside as unreasonable, applying the principles in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. The applicant also argued that the officer’s decision should be set aside due to procedural unfairness.
[3] For the reasons that follow, I conclude that the application must be dismissed.
I. Events Leading to this Application
[4] The applicant is a citizen of Iran. He is an information technology (“IT”
) professional with years of experience in the area. He is employed in the IT department of a bank in Iran.
[5] On August 4, 2021, the applicant applied for a work permit under paragraph 205(a) of the IRPR and the federal government’s International Mobility Program, which concerns entrepreneurs and self-employed persons seeking to start and operate a business in Canada.
[6] The applicant proposed to start an IT consulting business in the Vancouver area. His application included a business plan and written submissions from his counsel.
[7] An officer of Immigration, Refugees and Citizenship Canada (“IRCC”
) in Edmonton reviewed the application. On August 23, 2021, the officer entered notes into the Global Case Management System (“GCMS”
) and referred the application to the embassy in Ankara for further review of the applicant’s business plan and financial documents, and for verification of his language ability.
[8] An officer in Ankara reviewed the matter and made the following entry into the GCMS on March 28, 2022:
The applicant has applied as an entrepreneur proposing to establish Infotronic Computer Solutions Inc. a company which will operate as an IT services consultant in the computer systems design and related services industry.
The business plan indicates that an initial investment of $138,600 CAD will be required. The applicant has provided bank statements demonstrating a balance of approximately $150,000 CAD. Based on this I am not satisfied that the proposed business venture would represent a reasonable expense.
Sales estimates appear to be based only on average obtainable market share; however, the estimates are high with over $299,000 in sales the first year with a small workforce of one computer engineer and one computer programmer. The sales assumptions are not supported by potential contracts or clients and appear speculative.
Based on the aforementioned I am not satisfied that the requirements for LMIA exemption have been met nor that the applicant has presented a viable business plan that would represent a significant benefit to Canada.
[9] By letter dated March 28, 2022, the officer refused the work permit application owing to the applicant’s failure to show that he would leave Canada at the end of his stay under IRPR subsection 200(1).
II. Analysis
[10] In this application for judicial review, the applicant requested that the Court set aside the officer’s decision as unreasonable or because he was deprived of procedural fairness.
[11] The applicant also requested that the Court issue an order requiring the decision maker to issue him a work permit for at least one year, or return the matter to another decision maker for redetermination with directions.
A. Was the decision reasonable?
(1) Standard of Review
[12] As the parties agreed, the standard of review for the officer’s substantive decision is reasonableness. Reasonableness review is a deferential and disciplined evaluation of whether an administrative decision is transparent, intelligible and justified: Vavilov, at paras 12-13 and 15. The starting point is the reasons provided by the decision maker, which are read holistically and contextually, and in conjunction with the record that was before the decision maker. A reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrained the decision maker: Vavilov, esp. at paras 85, 91-97, 103, 105-106 and 194; Canada Post Corp v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at paras 2, 28-33, 61; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, at paras 8, 59-61, 66.
[13] Not all errors or concerns about a decision will warrant the Court’s intervention. To intervene, the reviewing court must be satisfied that there are “sufficiently serious shortcomings”
in the decision such that it does not exhibit sufficient justification, intelligibility and transparency: Vavilov, at para 100. The shortcoming(s) cannot be merely superficial or peripheral, but must be sufficiently central or significant to render the decision unreasonable: Vavilov, at para 100; Canada Post, at para 33; Alexion Pharmaceuticals Inc v. Canada (Attorney General), 2021 FCA 157, [2022] 1 FCR 153, at para 13.
[14] Absent exceptional circumstances, this Court’s role is not to agree or disagree with the decision under review, to reassess the merits, or to reweigh the evidence: Vavilov, at paras 125- 126: Mason, at para 62.
[15] The applicant bears the onus on this application to show that the decision was unreasonable: Vavilov, at paras 75, 100.
(2) Was the officer’s decision reasonable?
[16] The applicant’s written submissions initially focused on the strength of his work permit application on its merits, arguing that he qualified on the merits under the C11 work permit category under IRPR paragraph 205(a). The applicant argued that the proposed business was viable and would provide “significant benefit”
to Canada, that he had the background and skills to support the business and that he had taken initial steps to implement the business plan.
[17] The applicant’s submissions to this Court explained why he disagreed with the officer’s conclusions in the GCMS notes, including with respect to the funds available to be invested and the likely sales revenue to be generated by the proposed business in Canada. According to the applicant’s written submissions:
a)With respect to the officer’s statement that the investment was not a reasonable expense, the applicant argued that the officer had fundamentally misapprehended or failed to account for evidence. The applicant noted that he held bank accounts plus properties in Iran, with an aggregate value of over CA$2 million. He had “the ability to invest C$138,600 into the business venture in Canada”
, as he had thought out every detail of the business plan to succeed in Canada. The officer therefore could not have based the decision on the evidence;
b)With respect to the officer’s statements about high and speculative sales estimates in the first year of the business with a small workforce and assumptions not supported by potential contracts or clients, the applicant argued that the business was forecast to grow in its first five years because of high demand for IT services from Canadian businesses. Thus the company would generate billable hour revenues and would engage in activities aimed at attracting and retaining clients and was “expected to reach its break-even point promptly in each forecasted year”
. The availability of niche markets would allow it to differentiate itself from other industry players; and
c)Contrary to the officer’s finding that the requirements for a labour market impact assessment (“LMIA”
) exception were not met and that the applicant had not presented a viable business plan that represented a significant benefit to Canada, the applicant argued that he had satisfied the requirements for an LMIA-exempt work permit under the C11 category, and explained how and why his proposed $138,600 investment and business plan did so.
[18] As may be apparent, the applicant’s submissions on these issues were principally a re-argument of the merits of his work permit application. The Court cannot engage with the merits on a judicial review application, absent extraordinary circumstances that do not arise in this case: Vavilov, at paras 83, 125.
[19] Applying the deferential principles in Vavilov, I find that the officer’s conclusions that the applicant had not presented a viable business plan that would represent a significant benefit to Canada and that the investment was not a reasonable expense, together with the supporting findings about the business plan, were all transparent, intelligible, and justified in that they respected the factual constraints in the evidentiary record.
[20] In particular, I am not persuaded that the officer fundamentally misapprehended or failed to account for the contents of the business plan and the applicant’s submissions filed with his work permit application: Vavilov, at para 126. First, it was open to the officer to conclude that the applicant’s proposed investment of $138,600 was not a reasonable expense. The applicant did not challenge the statement that his bank statements demonstrated a balance of approximately $150,000. In this Court, the applicant’s submission was that he had “the ability to invest C$138,600 into the business venture in Canada”
(underlining added). His submissions did not refer to the underlying documents about properties in Iran or their value, nor did he argue (for example) that he actually had more than $2 million available and ready to invest in the proposed business. The applicant has not shown that the officer made a finding that warrants the Court’s intervention.
[21] Second, it was also open to the officer to conclude that the applicant’s materials contained high and speculative sales estimates for the first year of the business and assumptions not supported by potential contracts or clients. The applicant did not refer to evidence of any actual or potential contracts or clients for the proposed business. Indeed, the applicant’s submissions did not challenge the officer’s statements based on inconsistencies with any specific evidence, but argued that the officer should have come to a different conclusion because of arguments that projected sales revenues would be met. Again, there is no basis for the Court to interfere with the officer’s conclusions.
[22] On the basis of these two conclusions and my review of the record (including the business plan), it was reasonably open to the officer to conclude overall that the applicant had not presented a viable business plan that would represent a significant benefit to Canada, for the purposes of IRPR paragraph 205(a): Vavilov, at paras 101, 126.
[23] Finally, the applicant’s written submissions contended that the officer’s decision to refuse the work permit application was arbitrary because, having regard to the materials he submitted to support the application, the officer could not conclude that the applicant would not leave Canada at the end of his authorized stay under IRPR subsection 200(1). I do not agree. In my view, that conclusion was open to the officer based on the record in this case, considering the officer’s conclusion that the proposed investment would not be a reasonable expense and the related findings under paragraph 205(a).
[24] For these reasons, I conclude that the applicant has not shown that the officer’s decision was unreasonable, applying the principles in Vavilov.
B. Was there procedural unfairness?
[25] If a procedural fairness question arises on an application for judicial review, the Court determines whether the procedure used by the decision maker was fair, having regard to all of the circumstances including the nature of the substantive rights involved and the consequences for the individual(s) affected. While technically no standard of review applies, the Court’s review exercise is akin to correctness: Hussey v. Bell Mobility Inc, 2022 FCA 95, at para 24; Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, [2021] 1 FCR 271, at para 35; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 FCR 121, at paras 54-55. The Court must be satisfied the duty of procedural fairness was met: Rebello v Canada (Justice), 2023 FCA 67, at para 10; Koch v Borgatti Estate, 2022 FCA 201, at para 40.
[26] The applicant’s position was that he should be afforded a high level of procedural fairness.
[27] The applicant made numerous arguments about alleged procedural unfairness under the auspices of the five non-exhaustive factors set out in Baker. Those factors, used to determine the content of the duty of procedural fairness owed in a particular situation, are: 1) the nature of the decision being made and the process followed in making it; 2) the nature of the statutory scheme and the terms of the statute pursuant to which the decision maker operates; 3) the importance of the decision to the individual or individuals affected; 4) the legitimate expectations of the person challenging the decision; and 5) the court must account for and respect the decision maker’s choices of procedure: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras 22-28.
[28] The Court has held consistently that in the administrative context of a work permit application, the Baker factors suggest that the level of procedural fairness to be provided is generally low: see e.g., Singh v. Canada (Citizenship and Immigration), 2021 FC 635, at para 21; Sulce v. Canada (Citizenship and Immigration), 2015 FC 1132, at para 10; Grusas v. Canada (Citizenship and Immigration), 2012 FC 733, at paras 34, 63. I am not persuaded that the present circumstances warrant a departure from the Court’s cases.
[29] The applicant’s arguments on alleged procedural unfairness may be conveniently grouped as follows:
1)Delays in processing the work permit application;
2)The use of Chinook;
3)The reasons provided for the decision were vague and irrelevant;
4)Failure to provide an opportunity to respond to the officer’s concerns about his application;
5)The officer made “veiled credibility findings”
; and
6)The decision exhibited bias.
[30] On these issues, I have had the benefit of reading several recent decisions in which the same or very similar procedural fairness arguments have been made in the context of work permit applications under the International Mobility Program: see Haghshenas v. Canada (Citizenship and Immigration), 2023 FC 464, at paras 20, 22 to 26; Raja v. Canada (Citizenship and Immigration), 2023 FC 719, at paras 22, 28-42; Ardestani v. Canada (Citizenship and Immigration), 2023 FC 874, at paras 23-32; Zargar v. Canada (Citizenship and Immigration), 2023 FC 905, at paras 9-16; and Shirkavand v. Canada (Citizenship and Immigration), 2023 FC 1022, at paras 10-23.
[31] Having considered the issues and circumstances in this case independently, I have reached the same conclusions as my colleagues. I will address each issue in turn.
(1) Delays in processing the work permit application
[32] The applicant argued that a decision on his work permit application was delayed for over seven months after filing, whereas other applications made during the same time received a decision within “a couple months”
. The applicant referred to the timelines in IRCC “guidelines”
under which his application should have qualified for a two-week processing time. The applicant argued that he had a reasonable expectation that his work permit application would be determined within a reasonable timeframe, “given past practice and processing times of similar applications under the program made during the same timeframe”
. The applicant’s written submissions included a list of previously-approved work permits and their approval dates.
[33] These submissions cannot succeed. The applicant did not file any evidence on this application to show any past practices of IRCC, actual processing times for work permit applications, or even evidence to prove the filing and approval dates of the work permit applications included in the applicant’s written submissions. Without proper evidence to support them, these arguments cannot be considered.
[34] The respondent adduced affidavit evidence on this application to seek to respond to the applicant’s position, which discussed how the work permit application proceeded after IRCC received it and processing times at the Ankara office at the relevant time (which were affected by priorities for Afghan nationals and applicants from Ukraine). The applicant did not cross-examine either of the two affiants and made no written submissions objecting to the admissibility or contents of the affidavits.
[35] At the hearing, the applicant complained that the affidavits were incorrect and misleading (or worse, “perjury”
, as I will address below) and that the affiants had no personal knowledge of his work permit application as neither one was the officer who made the decision.
[36] These submissions cannot be sustained.
[37] First, one affidavit filed by the respondent simply attached two IRCC documents as exhibits. The applicant argued that that one affidavit attached the wrong version of an International Mobility Program document (dated in 2017) – a version that did not apply when the work permit was filed. However, the applicant did not file any evidence to contradict the affidavit or to place the allegedly correct International Mobility Program document before the Court. At the hearing, counsel relied on his own letter filed with the work permit application and a footnote in it containing a hyperlink to the updated document. I observe that this is not proper evidence: Canada (Attorney General) v. Kattenburg, 2020 FCA 164, at para 32; see also Rule 82 of the Federal Courts Rules, SOR/98-106 and Bell Helicopter Textron Canada Limitée v. Eurocopter, 2013 FCA 261, at para 19. Regardless, it is unclear how any changes to the International Mobility Program document affected the processing or determination of this particular applicant’s work permit application. That application was filed in August 2021 and the decision was made in March 2022, prior to the apparent update to the International Mobility Program document in November 2022. Accordingly, I am unable to appreciate how the affidavit filed by the respondent contained an error.
[38] Second, the two affidavits filed by the respondent sought to provide information to answer the applicant’s allegations about alleged procedural unfairness. The affiants did not purport to have personal knowledge of the applicant’s work permit application – indeed, one affidavit said so expressly and explained that the officer who made the impugned decision had been temporarily assigned to the Ankara office to assist because of high volumes of applications. That affidavit also explained, expressly based on a review of the GCMS entries related to the applicant’s request for a work permit, how the file had proceeded through IRCC’s process. In the circumstances, the Court can weigh the evidence and no adverse inference should be drawn against the respondent. I also see no bar to the admission of the affidavits on this application as their contents fell within one or both of two exceptions in Association of Universities and Colleges (the general background and the procedural fairness exceptions): Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, at para 19-20; Andrews v. Public Service Alliance of Canada, 2022 FCA 159, at paras 18-19.
[39] Third, the applicant also disagreed with a statement in one affidavit that the applicant’s work permit application was not eligible for expedited processing – a statement characterized during argument as “perjury”. In my view, it is unnecessary in this case to determine whether the work permit application was or was not eligible for expedited processing, because there is no evidence that unfairness or prejudice resulted that would justify the Court’s intervention. I also observe that the explanation in the affidavit related to procedural fairness of IRCC’s process (as raised for the first time on this application).
[40] Finally, the applicant has not demonstrated that the timelines in the IRCC documents were legally enforceable or created deadlines. The applicant provided no evidence or submissions to demonstrate that the timelines were sufficiently clear, unambiguous and unqualified representations to support a reasonable expectation on the part of the applicant related to his filed work permit application: see Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para 68; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at para 95; Baker, at para 26; Shirkavand, at paras 17-18.
[41] See also Haghshenas, at paras 22-23; Raja, at paras 34-38; Ardestani, at para 25; Zargar, at para 12.
(2) Use of Chinook
[42] The applicant submitted that the reasons provided by the officer relied on the use of Chinook. The applicant’s written submissions described Chinook as a processing tool developed by IRCC to speed up officers’ review of the high volume of applications, review the file information, make decisions and generate notes in a fraction of the time it previously took to review the same number of applications. The applicant argued that it should be “presumed that not enough human input has gone into”
the review of his file and there was a “lack of effective oversight on the decisions being generated.”
[43] The applicant’s arguments are speculative. The applicant did not adduce evidence to support his position, or about what the Chinook software does and does not do. It is not sufficient merely to allege or presume that not enough “human input”
went into the review of his application or that there was a “lack of effective oversight”
, and the record does not support those arguments in this case. There is inadequate evidence to find that the apparent use of Chinook caused any procedural unfairness to the applicant in this case. See Haghshenas, at paras 22, 24; Raja, at paras 28-30; Ardestani, at para 26; Zargar, at para 12; Shirkavand, at paras 12-14.
(3) Allegedly vague and irrelevant reasons for the decision
[44] The applicant argued that the reasons given in the officer’s letter dated March 28, 2022, were vague and irrelevant given the time and resources used by the applicant to prepare the business plan and incorporate a business in Canada. He argued the reasons must be more than a “checked-box”
approach. He submitted that IRCC did not provide him with the reasons underlying the decision, which was a “cardinal omission”
. IRCC only provided detailed reasons for the decision after he filed his judicial review application.
[45] The crux of the applicant’s concern was that the GCMS notes, not the decision letter dated March 28, 2022, contained the officer’s substantive reasoning to explain why his business plan did not meet the criteria to be granted a work permit, and he was not provided with the GCMS notes simultaneously with the decision letter.
[46] The Court has repeatedly held that GCMS notes form part of the reasons for an officer’s decision: see e.g., Yang v. Canada (Citizenship and Immigration), 2023 FC 954, at para 9; Mohammadzadeh v. Canada (Citizenship and Immigration), 2022 FC 75, at para 5; Torres v. Canada (Citizenship and Immigration), 2019 FC 150, at para 19. It is lawful for a decision letter not to enclose the GCMS notes. An applicant may request a copy of the GCMS notes under Rule 9 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR 93-22. Justice Brown explained as follows in Haghshenas:
[25] The Applicant also expresses concern because he was not provided with the GCMS notes with the decision letter. There is no merit in this submission. It is well-established the Respondent is not obliged to provide applicants with the Officer(s) entire working file(s) along with the decision letter. This makes sense because some such working files may be extensive and voluminous. If an applicant wished to see the entire working file electronic or otherwise underlying their decision, they must ask for it: Cao v Canada (Citizenship and Immigration), 2022 FC 1696:
[44] First, it is well established that reasons for a decision found in the Officer’s GCMS notes are a constituent part of an administrative decision maker’s decision: Wang v MCI, 2006 FC 1298 at paras 21 – 23 and Singh v MCI, 2006 FC 1428 at para 2.
[45] Secondly, if the Applicant was dissatisfied with the reasons for decision found in the Refusal letter, it was incumbent upon him to seek further elaboration under Rule 9 rather than bring an application for leave and judicial review claiming that the reasons are inadequate: Marine Atlantic Inc. v Canadian Merchant Service Guild, 2000 CanLII 15517 (FCA) at paras 4-8 and Hayama v MCI, 2003 FC 1305 at para 15.
[46] I note this has been the law for more than two decades.
[47] These points are sufficient to dispose of the applicant’s arguments on this issue. See also Raja, at paras 31-33.
(4) No opportunity to respond to the officer’s concerns
[48] The applicant submitted that he did not have a meaningful opportunity to provide a response to the officer’s concerns about his application. He submitted that after he filed an application that met the eligibility requirements for a work permit under the International Mobility Program, he should have been provided with an opportunity to address IRCC’s concerns before a final decision was made on his work permit application.
[49] The reasoning in the officer’s decision letter and the GCMS notes related directly to the officer’s application of criteria in IRPR subsection 200(1) and under IRPR paragraph 205(a). It is well established that an officer is not required, as a matter of procedural fairness, to advise an applicant of shortcomings, weaknesses or other concerns arising from the application of the criteria established in the IRPR: see e.g., Masam v. Canada (Citizenship and Immigration), 2018 FC 751, at para 11; Penez v. Canada (Citizenship and Immigration), 2017 FC 1001, at para 37; Sulce, at paras 10-11, 16.
[50] It may be procedurally unfair not to seek more information from an applicant if such concerns do not arise from the application of the criteria in the regulations or if the concerns related to the credibility, accuracy, or genuine nature of the information submitted by an applicant: Sulce, at para 11. None of those circumstances arises in the present case.
[51] The applicant has not demonstrated a breach of procedural fairness on this ground.
(5) Alleged “veiled credibility findings”
[52] The applicant argued that the officer made “veiled credibility findings”
and effectively did not believe that he was a genuine applicant for a work permit. I do not agree. Nothing in the GCMS notes suggests that the officer had credibility concerns with the work permit application, the business plan or any of the other supporting information. Consistent with the premise of the applicant’s submissions in this proceeding, the officer refused the work permit application for its failure to meet the required criteria in the IRPR.
[53] See also Haghshenas, at para 20; Ardestani, at paras 29-31; Zargar, at para 13; Shirkavand, at paras 21-22.
(6) Alleged Bias
[54] The applicant submitted that the officer had demonstrated “a perception of bias”
by refusing his work permit on the basis of visit purpose, in spite of the evidence of the applicant’s travel history and his ability to return back to Iran at the end of his temporary stay.
[55] The applicant’s bias argument cannot be sustained. The evidence in the record does not discharge the high onus on the applicant to show a reasonable apprehension of bias – that a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would think that it is more likely than not that the decision maker, whether consciously or not, would not decide the matter fairly: Gulia v. Canada (Attorney General), 2021 FCA 106, at para 17; Younis v. Canada (Immigration, Refugees and Citizenship), 2021 FCA 49, at paras 35-37; Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at p. 394. See also Haghshenas, at para 26; Raja, at paras 39-42; Ardestani, at para 32; Zargar, at para 15; Shirkavand, at paras 19-20.
(7) Conclusion on Procedural Fairness Allegations
[56] For these reasons, I conclude that the applicant has not demonstrated that the officer deprived him of procedural fairness in the processing of his work permit application.
III. Allegations at the Hearing in this Court
[57] At the hearing in this Court, the applicant’s counsel made oral submissions that impugned the truthfulness and integrity of the evidence provided in the two affidavits filed by the respondent. Counsel for the applicant went so far as to characterize an affidavit as constituting “perjury”
, owing to supposed error in attaching the wrong version of a document. In addition, as noted earlier, the other affidavit contained a statement that the applicant’s work permit application did not qualify for expedited processing, which the applicant’s counsel also characterized as “perjury”
during reply argument, seemingly because the application did (according to counsel) in fact qualify for expedited processing.
[58] The respondent observed that these accusations were not raised before the hearing and the applicant did not cross-examine on the affidavits. The respondent submitted that there was nothing misleading in the affidavits.
[59] I agree with the respondent. I see no viable basis for the perjury accusations. It is unfortunate that these matters were not clarified or resolved between counsel before the hearing on May 18, 2023. There was ample time to do so, as the respondent filed the affidavit attaching the International Mobility Program document in June 2022 and the affidavit on processing in April 2023.
IV. Conclusion
[60] The application will therefore be dismissed.
[61] Neither party proposed a question to certify for appeal and none arises in the circumstances of this application.
[62] No costs order was requested.
JUDGMENT in IMM-3159-22
THIS COURT’S JUDGMENT is that:
1. The application is dismissed.
2. No question is certified for appeal under paragraph 74(d) of the Immigration and Refugee Protection Act.
“Andrew D. Little”
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