Docket: IMM-6423-23
Citation: 2024 FC 1880
Ottawa, Ontario, November 22, 2024
PRESENT: The Honourable Justice Fuhrer
BETWEEN: |
BAHRAM GHANBARI |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant Bahram Ghanbari is a citizen of Iran and Chief Executive Officer of Mahfel Sabz Shahr Co. Ltd. [MS Iran], an Iranian landscaping business. Mr. Ghanbari sought a three-year work permit under the Intra-Company Transferee – Senior Managers/Executives category to help establish Mahfel Sabz Shahr Canada Inc. [MS Canada], the Canadian affiliate of MS Iran. The companies are affiliated because of common ownership and control by the same group of shareholders.
[2] A visa officer of Immigration, Refugees and Citizenship Canada [IRCC] in Ankara, Türkiye initially refused the work permit application [Initial Refusal] on the basis that Mr. Ghanbari has not demonstrated he meets the eligibility requirements of an intra-company transferee in the managerial capacity, as described in paragraph 205(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR]. See Annex “A”
below for paragraph 205(a). The officer also grounded the Initial Refusal on the basis that Mr. Ghanbari did not demonstrate he or his employment by MS Canada comes within the exceptions described in section 186 or 203 of the IRPR.
[3] Upon receipt of the Initial Refusal, Mr. Ghanbari requested reconsideration, which also was refused [Decision]. The Global Case Management System [GCMS] notes which provide the reasons for the Decision indicate “no new information provided”
(i.e. in the reconsideration request) and, therefore, the “refusal decision stands.”
(The GCMS notes also contain the reasons for the Initial Refusal.)
[4] Mr. Ghanbari seeks judicial review of the Decision and, by implication, the Initial Refusal, arguing the latter was unreasonable and procedurally unfair.
[5] I find Mr. Ghanbari has shown that the Initial Refusal was unreasonable because the officer failed to account for a piece of central evidence in the assessment of Mr. Ghanbari’s financial ability to support the startup. I consider this issue determinative of the judicial review and, therefore, I decline to consider other issues raised by Mr. Ghanbari.
[6] For the reasons that follow, the Initial Refusal, and hence, the Decision, will be set aside with the matter remitted to a different visa officer for redetermination.
II. The Initial Refusal was unreasonable
[7] As a preliminary issue, I note that, although the judicial review application could have been clearer, I nonetheless am satisfied that the Initial Refusal is in issue on this judicial review.
[8] At the oral hearing of this matter, the Respondent observed that the judicial review application challenges the Decision. The Respondent argued that the Decision itself was not unreasonable because, as the GCMS notes indicate, there was no new evidence presented with the reconsideration request. While I do not disagree necessarily, I note that the judicial review application also mentions the Initial Refusal (by date) and indicates that Mr. Ghanbari paused before seeking judicial review to request reconsideration first. In other words, to the extent that the Respondent seems to be questioning whether the Initial Refusal is properly before the Court, that should have been stated clearly in the Respondent’s Further Memorandum of Argument, which in any event addresses the reasonableness of the Initial Refusal.
[9] A reasonable decision is one that exhibits the hallmarks of justification, transparency and intelligibility, and is justified in the context of the applicable factual and legal constraints: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 99. The party challenging an administrative decision has the burden of showing that it is unreasonable: Vavilov at para 100. I am satisfied that Mr. Ghanbari has met his onus here.
[10] In my view, the reasonableness of the Initial Refusal turns on whether the officer’s statement in the GCMS notes that “evidence of a Canadian bank account has not been provided”
is a sufficiently central factor—given the officer’s focus on Mr. Ghanbari’s financial ability to support the business—that is contradicted by the evidence before the officer, and thus determinative. I find that it is.
[11] As Vavilov guides (at para 126), the reasonableness of a decision may be jeopardized where the decision maker fails to account for the evidence before it. Here, the officer’s approach supports a finding that the Initial Refusal was unreasonable because the GCMS notes show that the conclusions were not based on all the evidence that was actually before the officer. This notably included the evidence of a Canadian bank account in the name of MS Canada showing a balance of about $57,000 (rounded up). In other words, the GCMS notes rebut the usual presumption that the officer considered all the evidence.
[12] Further, the above amount is not an insignificant sum in the context of the $200,000 the business plan estimates as the startup costs for MS Canada. The Court cannot guess at how the evidence of the Canadian bank account would be considered and weighed in the overall assessment of the work permit application.
[13] While the Respondent sought to make an issue of the fact that the Canadian bank account stands in the name of MS Canada, instead of Mr. Ghanbari, I am not persuaded that anything turns on this fact, especially because of the officer’s focus on the overall financial viability of MS Canada’s business, the sources of funding for which include MS Iran as well as Mr. Ghanbari personally. I pause to note that this issue was not raised in the Respondent’s Further Memorandum of Argument and, thus, it was raised improperly for the first time at the oral hearing of this matter.
III. Conclusion
[14] For the above reasons, I conclude that the Initial Refusal was unreasonable and, therefore, the judicial review will be granted. The Initial Refusal and the Decision will be set aside, with the matter remitted to a different visa officer for redetermination, taking into account the evidence of the Canadian bank account.
[15] Neither party proposed a serious question of general importance for certification. I find that none arises in the circumstances.
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