Docket: IMM-2853-24
Citation: 2025 FC 143
Toronto, Ontario, January 24, 2025
PRESENT: The Honourable Mr. Justice Gleeson
BETWEEN: |
DANG BUU NGUYEN |
HOANG DAN THUYEN NGUYEN |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Background
[1] The Applicants, citizens of Vietnam, seek an Order setting aside the February 9, 2024, decision of an Immigration Officer [Officer] refusing their applications to extend their status in Canada.
[2] The Primary Applicant [PA], Mr. Dang Buu Nguyen holds a master’s degree in music and is a composer and conductor. The PA applied for a work permit under the International Mobility Program [IMP], having received an offer of employment from a Canadian company that he had co-founded and, in the application for an extension of his status, he declared he fully owned.
[3] The IMP established pursuant to paragraph 205(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], exempts self-employed workers or entrepreneurs from the need to provide a Labour Market Impact Assessment [LMIA] on the basis that the work an applicant intends to undertake in Canada will be of significant social, economic or cultural benefit to Canada.
[4] Immigration, Refugee and Citizenship Canada’s [IRCC] Operational instructions and guidelines provide policy and procedural guidance on the issuance of visas under the IMP (Significant benefit to Canada [R205(a) – C10] – Canadian interests – International Mobility Program [C10]; Entrepreneurs or self-employed individuals seeking only temporary residence – [R205(a) – C11] – International Mobility Program [C11]).
[5] The PA was granted a two-year work permit under the IMP. The Applicant’s spouse was granted an open work permit, and their two dependent children were granted temporary resident and study permits. The family entered Canada in October 2021.
[6] The Applicants applied for extensions of their status in Canada in October 2023. The Officer refused the PA’s extension, having concluded that an extension could not be granted without a LMIA. His spouse’s extension application was refused solely because of the PA’s refusal.
II. Decision under review
[7] In refusing the PA’s extension application, the Officer first set out the requirements, identified in C11, that a self-employed person or entrepreneur must demonstrate to be eligible under the IMP:
The work is on a temporary or seasonal basis and that they have plans to leave Canada in specified period of time.
The work will generate significant economic, social or cultural benefits or opportunities for Canadian citizens or permanent residents.
Economic, social or cultural benefits to Canadian clients of the self-employed worker may be considered in this case, particularly if the worker is providing a unique service.
[8] The Officer found the PA had not provided any future plans, and did not indicate when he will return to Vietnam. The Officer noted the PA’s stated intent to hire additional staff but found the company’s financial records demonstrated the company lacked the financial capacity to do so considering the company’s reported business income was barely enough to cover basic expenses and the PA’s salary. The Officer further found that teaching music in private homes and in a Vietnamese community center (piano teacher) was the focus of the business but acknowledged the PA’s involvement with a church choir and that the business had produced one public performance in 2022. The Officer accepted that the PA may be a talented musician but found the PA had not demonstrated the business was offering a unique service or providing significant social, economic or cultural benefits to Canadians. In refusing the extension application under paragraph 205(a) of the IRPR, the Officer identifies the possibility of the PA obtaining a LMIA and then seeking restoration of his status in Canada.
III. Issues and Standard of Review
[9] The PA argues the Officer’s decision is unreasonable because the Officer failed to: (1) conduct inquiries and appreciate the significance of the PA’s work within the Vietnamese-Canadian community; (2) provide reasons for departing from the 2021 decision to issue the LMIA exempt work permit and to engage with the documentary evidence demonstrating the significance of the PA’s work within the community; and (3) reasonably consider the impact of COVID-19 restrictions on the implementation of the PA’s original work plan. In the alternative, the PA argues the Officer fettered their discretion by failing to exercise the flexibility provided pursuant to paragraph 205(a) of the IRPR.
[10] The Officer’s decision is to be reviewed on the presumptive standard of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 10 [Vavilov]). A reasonable decision is one where both the outcome and supporting rationale is transparent, intelligible and justified in relation to the facts and law that constrain the decision-maker (Vavilov at paras 15 and 85). A reviewing court will intervene only where it is satisfied there are sufficiently serious shortcomings in the decision such that it cannot be said the decision exhibits the requisite degree of justification, intelligibility and transparency (Vavilov at para 100).
IV. Preliminary matter
[11] The Respondent submits that the PA has improperly included – and now improperly seeks to rely on – evidence generated following the refusal decision and that was therefore not before the Officer. In addition, the Applicants’ argument that the Officer erred by failing to consider the impact of COVID-19 on the PA’s business is raised for the first time on judicial review.
[12] Subject to limited exceptions, judicial review is undertaken on the basis of the record before the decision maker (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19-20). The Applicant argues that the Affidavit included at pages 454-456 of the Applicant’s Record [Reverend’s Affidavit] simply provides context, a recognized exception to the general rule that fresh evidence is not considered on judicial review. The Applicant acknowledges that COVID-19 considerations were not expressly raised before the Officer, but submits the Officer was nevertheless reasonably required to consider them given the notoriety of the impact of restrictions on businesses between 2021 and 2023.
[13] I disagree. When undertaking judicial review on the reasonableness standard, it would be improper for the reviewing court to rely on a decision maker’s failure to address an issue not raised as the basis for quashing the decision (Singh v Canada (Citizenship and Immigration), 2023 FC 875 at para 53). The Applicants’ submissions challenging the reasonableness of the decision on the basis that the Officer failed to account for COVID-19 restrictions are not properly before the Court and I have not addressed those submissions.
[14] With respect to the Reverend’s Affidavit, it is not providing context but instead responds to and seeks to put fresh or new facts before the Court that, at least in part, address the COVID-19 restriction argument. The Reverend’s Affidavit has therefore not been considered.
V. Analysis
[15] The Applicants’ arguments in this case essentially reflect disagreement with the Officer’s assessment of the evidence. A review of the record demonstrates that the Officer accurately identified the criteria the Applicants were required to demonstrate to succeed on the PA’s extension application and addressed the PA’s evidence and submissions.
[16] The Applicants argue that the Officer failed to consider the “abundance of letters of support”
from the Vietnamese-Canadian Community. However, the Global Case Management System [GCMS] notes demonstrate that the Officer considered the support letters, taking note of “several letters of reference, indicating the [PA] is a valuable piano teacher.”
The Officer also acknowledges the PA’s involvement in a church choir and that the PA’s business delivered a single public performance in 2022. Contrary to the circumstances in Shang v Canada (Citizenship and Immigration), 2021 FC 633, the Officer engaged with the evidence, including the views of those providing letters of support, and weighed that evidence in light of the C11 requirements.
[17] Nor was the Officer bound by the prior decision to grant the initial visa under the IMP as the PA suggests. The Officer was instead required to consider the PA’s extension application on the basis of the evidence provided and submissions made in support of that request. In doing so, the Officer noted the absence of a plan, that the stated intent to hire Canadians and grow the business was not viable based on the financial records provided, and that it was not shown the business was providing a unique service or a significant benefit to Canadians.
[18] The Applicants’ assertion that the Officer fettered their discretion by applying the C11 requirements to the PA’s renewal application, thereby failing to take into account the flexibility provided by paragraph 205(a) of the IRPR is without merit. The Officer reasonably concluded the PA had failed to demonstrate the business offered a significant social, cultural or economic benefit or opportunity for Canadians.
[19] The Officer grappled with the relevant and key issues engaged by the C11 requirements and the PA’s submissions. The GCMS notes reflect a logical and rational chain of analysis from which the decision reached reasonably follows. There is no basis to intervene.
VI. Conclusion
[20] The Application for judicial review is dismissed. The Parties have not proposed a question for certification, and none arises.
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