Citation: 2024 FC 1955
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Ottawa, Ontario, December 4, 2024
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PRESENT: The Honourable Mr. Justice Southcott
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BETWEEN:
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KAVEH TABAAK
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Applicant |
and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
Overview
[1] This is an application for judicial review of a decision made by an Immigration, Refugees and Citizenship Canada [IRCC] officer [the Officer] dated June 21, 2023 [the Decision]. In the Decision, the Officer refused the Applicant’s application for a work permit under the International Mobility Program.
[2] As explained in further detail below, this application for judicial review is allowed, because the Decision is unreasonable in that it does not disclose an intelligible engagement with the financial information provided in the Applicant’s work permit application.
II. Background
[3] The Applicant is a citizen of Iran. He is the Chief Executive Officer of a commercial and industrial real estate construction and development company in Iran. The Applicant applied for a work permit under the International Mobility Program (category C11 applicable to self-employed entrepreneurs), pursuant to paragraph 205(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], as a foreign national who would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents. The premise of his application was that, through a company incorporated in British Columbia, the Applicant would provide commercial, recreational, and educational building construction services in Vancouver.
[4] In a letter dated June 21, 2023, conveying the Decision being considered in this application for judicial review, the Officer found that the Applicant did not meet the requirements of the IRPR. The Officer was not satisfied that the Applicant would leave Canada at the end of his stay as required by paragraph 200(1)(b) of the IRPR, based on the following factors:
- The relevant compensation and the Applicant’s financial situation were insufficient to support the stated purpose of travel for himself and any accompanying family members; and
- The Officer was not satisfied there was documentary evidence to establish that the Applicant met the exemption requirements of the C11 category under paragraph 205(a) of the IRPR.
[5] The Officer’s Global Case Management System [GCMS] notes provide further reasons for the Decision as follows:
I have reviewed the documents on file.
The applicant is a 47 years [sic] old Iranian national applying for a WP under the Entrepreneurs or self-employed individuals seeking only temporary residence – [R205(a) – C11] – International Mobility Program with the intent of establishing the following company in Canada: Rezhyan Pey Corp.
According to the financial plan, the investment capital is equivalent to 200 000 CAD. A total of 38,863 CAD will be spent on marketing in the first year of operations, with 15,000 CAD as initial marketing expenditure. At a monthly rate of 3,000 CAD, the company will rent a fully equipped office space in the Vancouver, BC, area to run its activities, a total of 36, 000 CAD for the first year. An investment of 107,000 CAD in fixed assets is also added for the first year. This financial planning for the first year is leaving 18 000 CAD to hire a civil mechanical, plumbing and electrical engineers as well as a contractor to manage human resources.
Based on this initial financial plan, I am not satisfied that the funding capital would be sufficient to sustain the significant economic benefits stated in the business plan. I am also not satisfied that the applicant's assets and financial situation are sufficient to support the stated purpose of travel.
Application is refused under R200(1)(b) and R205(a).
III. Issue and Standard of Review
[6] The sole issue on the merits of this application is whether the Decision is reasonable. As is implicit in that articulation, the standard of reasonableness applies to the Court’s review of the merits of the Decision (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 16-17).
[7] However, the Court must also address a procedural issue, whether to grant the Applicant an extension of time to pursue his application for judicial review, as the application was not commenced within 60 days of the date the Decision was communicated to the Applicant, as required by paragraph 72(2)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27. While the Court issued an Order dated August 16, 2024, granting leave to commence this application, the Order did not address the Applicant’s request for an extension of time.
IV. Analysis
A. Extension of Time
[8] The parties agree that the test for granting an extension of time requires the Court to consider whether the Applicant has demonstrated: (a) a continuing intention to pursue his application; (b) that the application has some merit; (c) that no prejudice to the Respondent arises from the delay; and (d) that a reasonable explanation for the delay exists (Canada (Attorney General) v Hennelley, 1999 CanLII 8190 (FCA) [Hennelley] at para 3). As the Applicant emphasizes, it is not necessary for him to establish all four elements of this test. As the overriding consideration is that justice be done, a compelling position on one of the elements may counterbalance a less compelling position on another (Canada (Attorney General) v Larkman, 2012 FCA 204 [Larkman] at para 62).
[9] As explanation for the delay of approximately 50 days in commencing his application, and to demonstrate a continuing intention to pursue the application, the Applicant relies upon his affidavit, in which he states that his ability to retain counsel in Canada was compromised by severe Internet censorship in Iran where the Applicant resides. He describes the censorship as having affected his access to social messaging and email applications and attaches media articles identifying Internet restrictions imposed by Iran.
[10] The Respondent argues that these articles do not support a conclusion that there were Internet outages, or restrictions on email access, that occurred for prolonged and continuous periods of time. In reply, the Applicant’s counsel recognizes the articles’ references to Internet shutdowns that were imposed only for certain limited periods of time, apparently intended to coincide with anticipated periods of antigovernment protests, but submits that these disruptions were in addition to ongoing restrictions to Iranians’ access to digital space.
[11] I agree with the Respondent that the Applicant’s evidence is somewhat weak, particularly as it provides little detail of his allegedly thwarted efforts to contact counsel.
[12] However, the fact that leave has already been granted in this matter represents a conclusion that the application for judicial review has some merit. Moreover, as will be explained below in my consideration of the parties’ arguments on the merits, I find that the application has sufficient merit to succeed. Furthermore, as the Applicant emphasizes, the Respondent has not argued that it has suffered any specific prejudice as a result of the Applicant’s filing delay.
[13] Taking into account the guidance in Larkman, I am satisfied that the weakness of the Applicant’s case, on the two Hennelley factors to which the evidence surrounding curtailed Internet activity relates, is counterbalanced by the strength of his case on the other two factors (lack of prejudice to the Respondent and merits of the application). I therefore find that it is in the interests of justice that an extension of time be granted, and my Judgment will so provide.
B. Reasonableness of the Decision
[14] As demonstrated by the combination of the Officer’s GCMS notes and the letter conveying the Decision, the Officer found both that the Applicant’s assets and financial situation were insufficient to support his stated purpose for travel and that the funding capital for the Applicant’s Canadian business would not be sufficient to sustain the economic benefits necessary to meet the exemption requirements under paragraph 205(a) of the IRPR. As I read these documents, both findings were based on the Officer’s analysis of the Applicant’s financial plan for the business and the resulting conclusion that the business would be inadequately funded. Consistent with this interpretation, the parties’ respective submissions on the merits of this application for judicial review focused principally upon the Officer’s financial analysis.
[15] As reflected in the GCMS notes, the Officer found that the Applicant’s proposed investment capital of $200,000 was inadequate. Based on the Applicant’s financial plan, the Officer took into account $38,863 intended to be spent on marketing in the first year of operations (including an initial $15,000 marketing expenditure), $36,000 in office rental expenses for the first year, and an investment of $107,000 in fixed assets for the first year. The sum of those expenditures, deducted from the $200,000 capital investment, left the Applicant with only approximately $18,000 to hire engineering and human resources staff. The Officer therefore concluded that the intended business was underfunded.
[16] In challenging the reasonableness of this analysis, the Applicant argues that the Officer overlooked, or failed to intelligibly address, the business’s projected revenues for the first year. The Income Statement included in the Applicant’s business plan projected net revenues (after GST/HST) of $777,254 and (following deduction of direct material, labour and other costs totaling $544,078) gross profit of $233,176. After taking into account operating expenses totaling $240,972, the business’s earnings before interest, tax, depreciation and amortization (EBITDA) would be a negative $7796. While the result of these figures is negative, they do not take into account the intended capital investment of $200,000.
[17] The effect of the $200,000 investment is demonstrated by the Cash Flow Projections included in the business plan. For the first year, taking into account cash from revenue, deducting costs (including salaries) from operating activities and from the intended purchase of fixed equipment, and adding the $200,000 investment, results in a projected positive cash balance of over $18,000.
[18] Returning to the Applicant’s position, I accept that the financial statements included in the business plan demonstrate the Applicant projecting the business being in a cash positive position in the first year, if both projected revenues and the capital investment are taken into account. I do not understand the Respondent to take issue with these mathematics or with the Applicant’s position that the Officer’s analysis did not take any revenues into account. Rather, the Respondent argues that the Officer was not prepared to take the projected revenue into account, because the figures the Officer analysed demonstrated that the business did not have the financing necessary to start up and sustain itself and therefore would not be able to perform the services on which it would depend to generate revenue.
[19] In reply to this argument, the Applicant submits that the Decision does not demonstrate reasoning of this nature and is therefore unreasonable, either because the Officer overlooked the evidence as to the business’s projected revenues or failed to intelligibly explain in the Decision why those revenues were not being taken into account.
[20] I appreciate the point raised by the Respondent that, in conducting reasonableness review, a court must read an administrative decision-maker’s reasons in light of the history and context of the proceeding in which they were rendered, for instance by considering the evidence and the parties’ submissions, and that this may explain an aspect of the reasoning process that is not apparent from the reasons themselves (Vavilov at para 94). The Respondent draws a distinction between analysis of this nature, which is permissible, and an impermissible buttressing by the court of a decision-maker’s reasons (Vavilov at para 96).
[21] However, in my view, this is not a case where consideration of the Decision in the context in which it was rendered allows the Court to conclude that the Officer declined to take the projected revenues into account for the reasons the Respondent suggests.
[22] While I take the Respondent’s point that a business cannot generate revenue unless it is sustainable, it appears to me that the costs the Decision references include expenses (rent, salaries, and the majority of the marketing) that would be incurred over the course of the first year, not immediately upon or as a prerequisite to start up. It is therefore not apparent to me that it would be logical to conclude that the business would be unable to begin generating revenue that, in combination with the $200,000 capital investment, would allow it to sustain itself during the first year of operations. It is therefore not obvious to me that the Decision should be interpreted as based on reasoning of this nature by the Officer.
[23] The Decision is entirely silent on the contribution to the business’s cash requirements that would be represented by the projected revenues and reveals nothing as to why the Officer did not take that contribution into account. As the Respondent submits, a reviewing court should not expect from an administrative decision-maker the sort of express, lengthy, and detailed reasoning that the court might itself provide (Zeifmans LLP v Canada, 2022 FCA 160 at para 9). This is particularly true in the case of decisions by IRCC officers of the sort under review in the matter at hand, given the significant volume of applications such officers must address (Nazari v Canada (Citizenship and Immigration), 2024 FC 546 at para 12). However, I find persuasive the Applicant’s submission that, if it was the Officer’s conclusion that the Applicant’s revenue projections were not compelling, the Officer could have stated this with very limited effort, and the Court would then have had a basis to understand the Officer’s reasoning.
[24] In conclusion, I find that the Decision lacks the intelligibility required to withstand reasonableness review under the principles explained in Vavilov. As such, this application for judicial review will be allowed. Neither party proposed any question for certification for appeal, and none is stated.
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