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A recent ruling by Canada’s federal court has reiterated that, as a matter of procedural fairness, the officer reviewing an application is not required to advise the applicant about the weak aspects of their application before they make a decision.
The case concerned an applicant who was a citizen of Iran. He applied for a work permit under the International Mobility Program, which is a program for entrepreneurs and self-employed persons seeking to start and operate a business in Canada.
The applicant wanted to start an IT consulting business in the Vancouver area. His application included a business plan and written submissions from his counsel.
The immigration officer reviewing his case noted that the applicant’s business plan indicated a required initial investment of $138,600 CAD, but the applicants bank statements only demonstrated a balance of approximately $150,000 CAD.
Based on this, the officer was not satisfied that the proposed business venture would represent a reasonable expense. In addition, the applicants’ sales estimates within the first year were very high but were not supported by potential contracts or clients.
The officer decided that the applicant did not present a viable business plan that would be a significant benefit to Canada and refused the work permit.
The applicant applied for judicial review of the decision, arguing that the officer’s decision was unreasonable and that he was deprived of procedural fairness. He argued that the proposed business was viable and would provide a significant benefit to Canada, that he had the background and skills to support the business and that he had taken the initial steps to implement the business plan.
In addition, the applicant argued that he had fundamentally misapprehended or failed to account for evidence of his expenses. In particular, the applicant said that he had bank accounts and properties in Iran with a value of over $2 million. Because of this, he had the ability to invest the $138,600 into the business venture in Canada.
However, the court found that the officers conclusions about the applicant’s business plan were all transparent, intelligible and justifiable in that they were based off of the evidence and information provided by the applicant.
It was open to the officer to conclude that the applicant’s proposed investment was not a reasonable expense, especially since his application did not refer to his bank accounts or properties worth $2 million that the applicant later claimed were available and ready to be invested in the proposed business.
In addition, the applicant argued that he did not have a meaningful opportunity to provide a response to the officer’s concerns about his application. The court explained that it is well-established that an officer is not required, as a matter of procedural fairness, to advise an applicant of any shortcomings or weaknesses or other concerns arising in the application.
The implication of this federal court ruling is that it may only be procedurally unfair if officers do not seek more information from an applicant if they have concerns that do not arise from the application of the criteria in the regulations or if the concerns are related to credibility, accuracy or the genuine nature of the information submitted by the applicant.
Since officers are not required to notify the applicant that there are shortcomings or weaknesses in an application, applicants should make sure to provide all evidence or information at the outset to create the strongest application possible.
Applicants will not necessarily be given another chance to rectify shortcomings or provide more evidence or information after an application has been submitted for review, so it is important to make sure you are providing any evidence that may be relevant.
It is also recommended that you consult an immigration attorney, as they will advise you about the shortcomings or weaknesses in your application and can guide you on how to make your application as strong as possible.
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