Date: 20241202
Dockets: IMM-3732-24
Citation: 2024 FC 1944
Toronto, Ontario, December 2, 2024
PRESENT: The Honourable Madam Justice Aylen
BETWEEN: |
PRABH SHARAN SINGH |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The Applicant seeks judicial review of a decision by an officer [Officer] with Immigration, Refugees and Citizenship Canada [IRCC] refusing his application for permanent residence under the Express Entry Federal Skilled Worker Program [Express Entry program].
[2] In order to be eligible to apply under the Express Entry program, the Applicant was required to create an Express Entry Profile. In his profile, the Applicant claimed work experience as President of 2583700 Ontario Inc., operating as Student Nurses Canada. As a result of this claimed Canadian work experience, the Applicant was awarded 40 points, bringing his total Comprehensive Ranking Score [CRS] to 476, which was 13 points above the minimum for the round for which he was selected. As a result of this preliminary assessment, the Applicant was invited to apply for permanent residence.
[3] As part of his application for permanent residence, the Applicant submitted a verification letter from Student Nurses Canada, paystubs and a T4 Statement of Remuneration.
[4] Following a preliminary review of his application, IRCC sent the Applicant a procedural fairness letter [PFL] advising the Applicant of IRCC’s concern that Student Nurses Canada was not, in fact, an operational company and requested “all relevant information on the operations of Student Nurses Canada, proof of ongoing operations, location of the business.”
[5] In response to the PFL, the Applicant provided a 2023 Canada Revenue Agency Notice of Assessment for Student Nurses Canada, screen shots of their Facebook page, a Memorandum of Understanding between Student Nurses Canada and Clarkridge Career Institute and a declaration from their legal counsel that the company was “providing educational services and is in good standing.”
The Applicant’s covering letter further provided:
Student Nurses Canada is a private tutoring academy offering nursing exam preparatory courses, comprehensive review of nursing theory, career guidance and career counselling, seminars and workshops to both Canadian nursing students and Internationally educated nurses preparing to be Registered Nurses. Student Nurses Canada trains nursing students for registration exams such as Canadian Practical Nurse Registration Examination (CPNRE), National Council Licensure Examination (NCLEX – RN) and mandatory Jurisprudence Exam and assists the students in successful registration with the College of Nurses of Ontario (CNO) as well as in job search and their successful placement. The business also collaborates and partners with Clarkridge Career Institute, which is a Private Career College offering healthcare courses, through a Memorandum of Understanding to provide tutoring and exam preparation services to its students enrolled in healthcare courses.
[6] By letter dated February 5, 2024, the Officer rejected the Applicant’s application for permanent residence. In the letter, the Officer correctly noted that section 11.2 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] stipulates two points in time at which IRCC must consider (a) whether an application meets the minimum eligibility criteria for being invited to make an application and (b) an applicant’s ranking (based on qualifications) pursuant to paragraphs 10.3(1)(e) and (h). The first point in time is when the invitation is issued to the applicant and the second is when the application for permanent residence is received.
[7] In this case, the relevant minimum eligibility criteria was at least one year of continuous full-time paid work experience. The Officer rejected the Applicant’s application on the basis that he was not entitled to 40 points for Canadian work experience and the resulting reduction to his CRS brought him below the lowest ranking person who was invited to apply for permanent residence in his round. The Global Case Management System [GCMS] notes, which form part of the Officer’s reasons, further provide:
PAs application was assessed based on the employment with 2583700 Ontario Inc. O/A Student Nurses Canada. I am not satisfied client can be awarded MEC points for this employment as the business does not appear to be operating as stated therefore completing requirements of NOC not possible at this time. After recalculation CRS points drop under the minimum requirement for the round. I have found that the PA no longer meets the minimum criteria to be eligible to be invited to apply set out in an instruction given under 10.3(1)(e), the PA no longer meets the requirements of Section 11.2 of IRPA. Section 11.2 of the Act requires that information provided in your Express Entry Profile concerning your eligibility to be invited to apply (10.3(1)(e)) as well as the qualifications on the basis of which you were ranked (10.3(1)(h)) be valid both at the time the invitation was issued and at the time the application for permanent residence is received. I [sic] not satisfied primary applicant will becomes economically established in Canada and therefore, does not meet the requirement of A 11.2/R75; […]
[8] The Applicant seeks judicial review on the basis that the Officer’s determination that Student Nurses Canada is not an operating company was unreasonable.
[9] When reviewing for reasonableness, the Court must take a “reasons first”
approach and determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified [see Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 8]. 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 [see Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 15, 85]. The Court will intervene only if it is satisfied there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency [see Adeniji-Adele v Canada (Minister of Citizenship and Immigration), 2020 FC 418 at para 11].
[10] The Respondent points out, in their memorandum of argument, various facts on the record that would support the Officer’s finding that Student Nurses Canada is not an operating company. These include: (a) the documents provided by the Applicant give scant information about the company’s day-to-day operations, its employees, the services provided and/or whether it is functioning as claimed by the Applicant in his Express Entry Profile; (b) the Notice of Assessment shows zero federal taxes paid for two consecutive years, which does not support a finding that the company is active; (c) there are no corporate communications nor marketing materials; (d) there was no list of students to whom tutoring services were provided, no schedule for tutoring and/or exam preparation services, no reviews from student and no training materials for new employees; and (e) the statement from Student Nurses Canada’s legal counsel is not responsive to IRCC’s concern, which specifically sought proof of ongoing operations.
[11] While this evidence (or lack thereof) could support the Officer’s determination, it is not open to counsel advocating for the Respondent to fashion their own reasons to buttress the Officer’s decision. The decision must stand or fall on its own based on the stated reasons [see Namin v Canada (Citizenship and Immigration), 2022 FC 1706 at para 17; Torkestani v Canada (Immigration, Refugee and Citizenship), 2022 FC 1469 at para 20]. Unfortunately, in this case, the Officer provided no reasons for their finding that Student Nurses Canada is not an operating company and failed to engage with the evidence provided by the Applicant as to the company’s operations, both with the Applicant’s initial application and later in response to the PFL. The absence of any justification for the Officer’s finding, coupled with a failure to grapple with the evidence before them, render the Officer’s decision unreasonable [see Vavilov, supra at paras 86, 126].
[12] Accordingly, the Officer’s decision shall be set aside and the matter remitted to a different officer for redetermination.
[13] Neither party proposed a question for certification and I agree that none arises.
JUDGMENT in IMM-3732-24
THIS COURT’S JUDGMENT is that:
The application for judicial review is granted and the matter is remitted to a different officer for redetermination.
There is no question for certification.
“Mandy Aylen”
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