March 8th 2021 – The Canadian federal court dismissed another judicial review application by a start-up visa entrepreneur in Nguyen v. Canada (IMM-4836-19). This is the second judicial review in this case.
Ms. Nguyen, a Vietnamese citizen, obtained a commitment certificate from a business incubator to develop a global mobile software application to establish a connection between parents, daycares and nursery schools in the member states of the Association of the Southeast Asian Nations (ASEAN).
In the first instance (IMM-3668-18), the court granted the judicial review because the officer relied on extrinsic evidence to refuse the application and Ms. Nguyen was not confronted to such evidence. In fact, she was not informed that the visa officer relied on the existence of similar software applications on the market to justify the refusal. This breached her procedural rights as she couldn’t address these concerns.
In the second instance, a different visa officer raised concerns about the lack of progress on the business and the high fees paid to the business incubators compared to the industry standards. These two issues were not raised by the first visa officer.
The applicant Nguyen argued in judicial review that it was unfair for the second visa officer to base his decision on motives that were not raised by the first visa officer. These new problems were found when no new information was provided in the file. The applicant is concerned that this leads to a never-ending process in which different decision-makers raise different concerns.
The Court decided that it is not unfair for the second visa officer to base their decision on matters that had not been identified as problematic by the first decision maker. Ms. Nguyen was duly informed of the concerns of the second visa officer and had the opportunity to provide a response.
“The fact that a second decision maker makes a new independent decision on a redetermination may mean that they raise or rely on issues that were not raised or relied on by the first decision maker in the decision that was quashed. This possibility is inherent in the decision making process, particularly where a multi-factorial determination such as an improper purpose assessment is at issue. It does not create an unfairness provided that, as here, the applicant has had the opportunity to address the issues raised by the second decision maker.”
Furthermore, the Court agreed that the fees paid to the business incubator were above industry standards and acknowledged the lack of progress in the development of the start-up. As a result, the Court concluded that the applicant’s participation in the agreement with the designated entity was “primarily for the purpose of acquiring a status or privilege under the Act and not for the purpose of engaging in the business activity for which the commitment was intended”.
Here is a detailed summary of the decision.
Citation: 2020 FC 1126
FEDERAL COURT DECISION FOR HOANG BAO TRAN NGUYEN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
On December 07, 2020, the second judicial review in the case of Hoang Bao Tran Nguyen v The Minister of Citizenship and Immigration was dismissed by the Federal Court Judge McHaffie.
Ms. Nguyen’s start-up business intends to develop a mobile software application allowing parents, daycares, and nursery schools in member states of the Association of Southeast Asian Nations (ASEAN) to connect with each other, enabling parents to select daycare and schooling options for their children.
In April 2017, the business incubator signed a term sheet with Ms. Nguyen offering to participate in their program and issued a “Start-Up Business Class Commitment Certificate”.
The visa officer’s initial refusal of Ms. Nguyen’s application for permanent residence as a member of the start-up business was quashed by Justice LeBlanc in April 2019. He concluded that the visa officer had unfairly relied on evidence, and did not provide Ms. Nguyen an opportunity to respond. Therefore, remitting the matter for determination by a different visa officer.
The second visa officer also refused the application implying that the main purpose of Ms. Nguyen’s application was to acquire a status of privilege under the Immigration and Refugee Protection Act, SC 2001 c 27 [IRPA] and not engaging in business activity for which the commitment was intended.
Hence, Ms. Nguyen filed another application for judicial review as she contends that the second visa officer’s decision was unfair and unreasonable as it relied on issues that were not raised by the first officer.
II. ISSUES AND ANALYSIS
The following issues were raised by Ms. Nguyen:
- The second visa officer identified concerns about the fees paid to the start-up incubator, and Ms. Nguyen’s limited progress in her business which issues were not raised by the first visa officer assessing the file.
In late May, the visa officer sent a second procedural fairness letter to Ms. Nguyen. Her response satisfied some of the concerns. However, the issue on the lack of progress, and the high fees being above the normal course of business were not fully addressed resulting in the visa officer’s refusal of her application.
The responsibility of the second visa officer to make a new independent decision may include issues that were not raised during the first decision that was quashed. It does not create an unfairness, provided that, the applicant had the opportunity to address the issues raised by the second decision maker.
Hence, the second refusal was procedurally fair as Ms. Nguyen was given the opportunity to address these areas of concern after they were identified in the second procedural fairness letter before the decision was made.
- Visa officer deciding that Ms. Nguyen’s primary objective in entering an agreement with the business incubator was acquiring a status or privilege under the IRPA, due to the concerns about the fees paid to the business incubator and the limited progress in her business.
- The incubation fees
Ms. Nguyen was given an opportunity by responding to the fairness letter to justify that the fees paid to the business incubator were in line with industry-standard or based on the services offered or received. However, she filed nothing to address this concern, arising in visa officer’s conclusion that the payment was not in the normal course of business.
- Progress of the business
The visa officer identified two concerns about the progress of the business:
(i) No progress had been made on the business since March 2018, despite the fact that the market for the business was outside Canada; and
(ii) There was little progress on the business in Canada during the period Ms. Nguyen held a work permit, between September 2017 and July 2018.
The business started in September 2017, and no progress for over a year was made. Ms. Nguyen could establish her business in Canada by using temporary permits. Since her market was outside Canada, progress could be achieved even without her presence in Canada.
The visa officer agreed with Ms. Nguyen that a work permit was optional. However, the business incubator said that there were urgent business reasons for Ms. Nguyen to come to Canada prior obtaining permanent residence and they needed to move quickly to prevent other entrepreneurs from delivering the solution. Nonetheless, despite this stated urgency and despite having a work permit, little progress was made in the business.
The visa officer observed the discrepancy between the stated intention for the work permit and Ms. Nguyen’s actions once the permit was issued as being inconsistent with the actions of someone whose primary intention was engaging in business activities.
Judge McHaffie concluded these were relevant factors that could be considered by the visa officer in their assessment, and the visa officer made reasonable findings and inferences with respect to each of them.
Judge McHaffie concluded that the visa officer’s decision was fair and reasonable. Hence, the application for judicial review is dismissed.