Docket: IMM-14131-23
Citation: 2024 FC 1798
Ottawa, Ontario, November 12, 2024
PRESENT: Mr. Justice McHaffie
BETWEEN: |
LINDAMULAGE DILHAN ELMO ALOYSIUS DE SILVA
RUWANI SAMANTHA DE SILVA
LINDAMULAGE ANUSHKA DILHAN DE SILVA
|
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] Dilhan De Silva sought a work permit as an intra-company transferee, to work for a Canadian company affiliated with his current employer in Sri Lanka. A visa officer with Immigration, Refugees and Citizenship Canada [IRCC] concluded Mr. De Silva was ineligible as an intra-company transferee because there was no “qualifying relationship”
between his current employer and his proposed Canadian employer. The visa officer therefore refused Mr. De Silva’s application, as well as dependent applications by his wife, Ruwani De Silva, and their child. The De Silvas seek judicial review of those refusals.
[2] At the conclusion of the hearing of this matter, I granted the De Silva family’s application, with reasons to follow. These are those reasons.
[3] The requirement for a “qualifying relationship”
between an applicant’s current employer and their proposed Canadian employer stems from the program requirements associated with intra-company transferees. Eligible intra-company transferees may obtain a work permit based on the recognition that they provide a “significant benefit”
as described in subsection 205(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227. Eligibility is described in an IRCC guideline entitled International Mobility Program: Canadian interests – Significant benefit – Intra-company transferees – General requirements [R205(a)] (exemption code C12): see Shams v Canada (Citizenship and Immigration), 2023 FC 1300 at paras 16–17. Among other requirements, the IRCC guideline requires that the business the applicant is seeking to work at is a parent, subsidiary, branch, or affiliate of their current employer. If the current employer and the proposed employer do not have such a qualifying relationship, the applicant will not qualify as an intra-company transferee.
[4] Three companies are central to Mr. De Silva’s application, the visa officer’s decision, and this application for judicial review:
Appollo Holdings (Pvt) Ltd [Appollo Holdings] is a Sri Lankan company where Mr. De Silva is currently employed as Chairman. Mr. De Silva, owns a majority stake in Appollo Holdings through a holding company of which he is the sole beneficial owner.
Dara Care Inc is an Ontario company that is 60% owned by Mr. De Silva and 40% owned by another individual, Dharin Prasanna Leanage.
Stay Home Forever Inc is an Ontario company that is unrelated to Appollo Holdings or Dara Care Inc from a corporate perspective. Stay Home Forever Inc offers franchises for the provision of home care services for elderly residents and individuals with disabilities that are run under the name “Stay Home Forever.”
[5] For purposes of this application, the parties agree that there is a qualifying relationship between Appollo Holdings and Dara Care Inc, and no qualifying relationship between Appollo Holdings and Stay Home Forever Inc.
[6] Mr. De Silva’s work permit application indicated that Dara Care Inc would operate as a franchisee of Stay Home Forever Inc, through the purchase of two “Stay Home Forever”
franchises. Since Dara Care Inc would be operating these franchises, and thus doing business as “Stay Home Forever,”
it is described in the application as “Dara Care Inc d/b/a Stay Home Forever.”
Mr. De Silva’s application includes an employment agreement between himself and Dara Care Inc, offering him the position of Chief Executive Officer, and referring to the company as “DARA CARE INC d/b/a STAY HOME FOREVER.”
[7] The visa officer’s reasons for decision are set out in their notes in the Global Case Management System [GCMS] maintained by IRCC. Those GCMS notes indicate that the officer’s conclusion that there was not a qualifying relationship between Mr. De Silva’s current employer and his proposed Canadian employer was based on their finding that the offer of employment in Canada was made not by Dara Care Inc, but by “Stay Home Forever.”
It is clear from the context of the notes that the visa officer used the term “Stay Home Forever”
to refer to Stay Home Forever Inc, since they refer to Stay Home Forever as “the Franchisor who sells the franchises.”
The visa officer’s finding was thus that the offer of employment was made by Stay Home Forever Inc and not Dara Care Inc. As there was no evidence of a qualifying relationship between Stay Home Forever Inc and either Appollo Holdings or Dara Care Inc, the visa officer was not satisfied that Mr. De Silva met the program requirements.
[8] I agree with Mr. De Silva that the officer’s central conclusion was based on an unreasonable factual finding. Although this Court will rarely interfere with factual determinations made by an administrative decision maker, it may conclude that a decision is unreasonable where the decision maker has “fundamentally misapprehended or failed to account for the evidence before it”
: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 125–126; Soni v Canada (Citizenship and Immigration), 2020 FC 813 at para 27.
[9] The Minister appropriately acknowledges that the documents Mr. De Silva filed with his work permit application show that the offer of employment he received was from Dara Care Inc (d/b/a Stay Home Forever) and not from Stay Home Forever Inc. However, the Minister argues that the visa officer reasonably concluded that the information put forward by the employer showed that the offer of employment was from Stay Home Forever Inc.
[10] The Minister describes a work permit application such as for an intra-company transferee as a “three party process,”
the three parties being the Minister (as represented by IRCC), the applicant, and the employer. To ensure program integrity, the program requires the employer to file the offer of employment directly with IRCC. This is done through an online “Employer Portal.”
[11] The Minister filed evidence on this application that included a printout of “the Offer of Employment as it appears in the GCMS after having been transmitted to IRCC via the Employer Portal.”
Although neither the printout nor the information from the Employer Portal appear in the certified tribunal record, I am prepared to accept that the information as seen in the Employer Portal printout was before the visa officer when they made their decision. The De Silvas do not contend otherwise.
[12] The Employer Portal printout shows what appears to be a web form, in which a variety of information is requested and supplied by the employer. This includes information regarding the employer, including their “Business Operating Name,”
ID number, business number, website, and contact information. It also includes information regarding the offered employment, including the title of the position, the employee, and their duties.
[13] The printout of the Employer Portal in respect of Mr. De Silva’s application shows the business operating name of the employer as “Stay Home Forever.”
It shows the employer’s ID number, business number, and a website for the employer, and identifies the employer contact information as Mr. Leanage, with his telephone number and email address. It gives the title of the position offered to Mr. De Silva as CEO, and describes the duties of the position.
[14] The Minister argues that the visa officer was required by program processing instructions to rely on the information in the Employer Portal, rather than weighing it against other information in the application. Based on that information, and in particular the business operating name of the employer, the Minister submits that the visa officer reasonably concluded that the offer of employment was made by Stay Home Forever Inc, the franchisor.
[15] I cannot agree, for several reasons.
[16] Contrary to the Minister’s submissions, the processing instructions in question, entitled Employer-specific work permits – General processing – International Mobility Program, do not appear to require visa officers to consider only information from the Employer Portal. Rather, the processing instructions expressly require the visa officer to assess whether the information in an application conflicts with the information provided by the employer, giving the following instructions:
Information in application conflicts with applicant’s documents
If the information in the work permit application does not match the information provided by the employer (for instance, worker documentation indicates a different LMIA exemption or the wages or locations are different), the processing officer can do either of the following:
• contact the employer directly using the contact information provided in the specific offer of employment and request further information
• assess the work permit application as received and make the final decision
[Emphasis in original, although the underlining appears to indicate a hyperlink, rather than intended emphasis.]
[17] Inherent in the determination that there is a conflict or mismatch between the information in the work permit application and that provided by the employer is a comparison between the two. There is also no indication that “assess[ing] the work permit application as received”
means that the officer cannot consider information filed by the applicant in reaching their conclusion. The Minister correctly points out that the processing instructions also state that in general, officers should not change any information provided by the employer, and should not request information pertaining to the offer of employment directly from the foreign worker, as only information provided directly from the employer can be inspected for compliance. However, in the present case, there is no basis to conclude that a change was necessary to the information provided by the employer, or that the information provided by the employer conflicted with that provided by Mr. De Silva.
[18] To the contrary, the Employer Portal specifically asked for the employer’s “Business Operating Name.”
For reasons that are not explained on the record, but may relate to the fact that the employer’s business number is provided, the Employer Portal does not ask for the employer’s corporate name. The business operating name of Dara Care Inc is, according to the record before the Court and that before the visa officer, “Stay Home Forever.”
There is thus no conflict between the Employer Portal information, which correctly identifies the business operating name of the employer as “Stay Home Forever,”
and the information in Mr. De Silva’s application, which indicates that the employer is Dara Care Inc d/b/a Stay Home Forever. This was not, as the Minister suggests, an error on the part of the employer or Mr. De Silva in providing incorrect information.
[19] In any event, it is clear that the visa officer did not limit themselves to the information filed in the Employer Portal. The visa officer’s notes clearly indicate that they considered information in Mr. De Silva’s application, including the corporate relationships between Appollo Holdings and Dara Care Inc, and the desire of Dara Care Inc to buy and operate Stay Home Forever franchises. Indeed, it would have been impossible for the visa officer to conclude that Stay Home Forever Inc was the franchisor, or to assess the corporate relationship between Stay Home Forever Inc and Appollo Holdings or Dara Care Inc without reviewing the documents in the application. As noted, those documents make clear that “Stay Home Forever”
is a “d/b/a”
of Dara Care Inc. The visa officer makes no reference to this or to the fact that Dara Care Inc planned to operate with the business operating name Stay Home Forever.
[20] What appears to have happened is that the visa officer assumed or concluded that the given “Business Operating Name”
of “Stay Home Forever”
referred to Stay Home Forever Inc, and not to Dara Care Inc. I conclude that this amounts to a fundamental misapprehension of the evidence or a failure to account for the evidence that renders the visa officer’s finding, and thus the decision on which it was based, unreasonable. Even if the visa officer had concluded there was a conflict between the information provided by the employer and the information in the application, and exercised their discretion not to contact the employer, the instructions indicate that they were to “assess the work permit application as received,”
which would and should have alerted the visa officer to the fact that their understanding that “Stay Home Forever”
referred to Stay Home Forever Inc was erroneous.
[21] Even the Employer Portal printout itself contains additional information indicating that the business operating name Stay Home Forever did not refer to Stay Home Forever Inc. Notably, the employer contact is identified as Mr. Leanage. The only information before the officer clearly identifies Mr. Leanage as a shareholder and director of Dara Care Inc, and not of Stay Home Forever Inc. Indeed, Mr. Leanage is the individual who signed the Employment Agreement—which refers to the company as Dara Care Inc d/b/a Stay Home Forever—on behalf of Dara Care Inc. Further, the information provided in the Employer Portal describing Mr. De Silva’s proposed duties refer to the “Franchisor”
as a separate party with whom Mr. De Silva would be working closely, but not as the employer. None of this information was apparently referred to or understood by the visa officer.
[22] The Minister points to the business number and website appearing in the Employer Portal printout, suggesting that the website is the website of Stay Home Forever Inc. However, there is no evidence on the record to either confirm this to be the case, or to indicate that the visa officer reached their conclusion based on the website. In any event, this would be tenuous grounds on which to reach such a conclusion, given that the business number of the company (a unique identifier) is given. Again, there is no evidence before the Court that the visa officer determined whether the given business number was that of Dara Care Inc, Stay Home Forever Inc, or some other business. Evidently, if the business number were that of Stay Home Forever Inc, the visa officer’s finding that the employer was Stay Home Forever Inc would be on a more solid evidentiary footing; if it were that of Dara Care Inc, it would confirm that the officer’s conclusion was erroneous. Either way, it appears the visa officer’s factual finding failed to take into account this relevant information about the identity of the employer.
[23] I therefore conclude that the visa officer’s finding that Mr. De Silva’s offer of employment was from the franchisor, Stay Home Forever Inc, was unreasonable as it fundamentally misapprehended and failed to account for the evidence that was before them. As the parties agreed, the visa officer’s conclusion that there was no qualifying relationship between Mr. De Silva’s prospective employer and his current employer was entirely based on their finding regarding the identity of the employer. I therefore conclude that the refusal of Mr. De Silva’s work permit application was unreasonable, as it was not justified in light of the factual constraints that bore on it: Vavilov at paras 105–107, 125–126. It must be set aside and Mr. De Silva’s application remitted for redetermination. As Ms. De Silva’s work permit application and their son’s study permit application were refused based on the refusal of Mr. De Silva’s application, those refusals must also be set aside and their applications redetermined.
[24] The application for judicial review is therefore granted. Neither party proposed a question for certification. I agree that this matter turns on its own rather unusual facts and that no question meeting the test for certification arises.
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