Background
Ali Mohammad Darvish, Naser Mostofi, Maryam Khadem Abbakhshani, and Leila Zamani Alavijeh, co-founders of iSina Inc., applied for permanent resident (PR) status under Canada’s Start-up Business Class (SUBC) program. Their designated entity (DE), Spark Innovation Centre, provided an initial commitment certificate valid from July 2021 to January 2022. Mr. Mostofi’s initial application in August 2021 was not acknowledged by IRCC, leading him to resubmit in March 2022, including a new commitment certificate and letter of support (LOS) dated March 8, 2022.
The trouble began when a Visa Officer issued a Procedural Fairness Letter (PFL) in March 2024 to Mr. Mostofi, noting that his March 2022 application lacked evidence of a commitment certificate less than six months old, as the initial one had expired. Despite Mr. Mostofi’s claim that Spark reissued the documents, a second PFL in April 2024 stated there was no evidence Spark directly sent the new commitment certificate to IRCC Montreal. Subsequently, Mr. Mostofi’s PR application was refused because IRCC only had the expired initial certificate. The applications of the other three essential members were also refused, as per the Immigration, Refugees and Citizenship Canada (IRCC) regulations stating that if one essential member’s application is rejected, the others must also be refused. The applicants sought judicial review, arguing the refusals were unreasonable and procedurally unfair.
The Court’s Holding
The Federal Court dismissed the applicants’ request for judicial review, upholding the Visa Officer’s decisions to refuse all four permanent resident applications. The Court found the Officer’s refusals to be both reasonable and procedurally fair, concluding that the applicants failed to demonstrate compliance with the regulatory requirements of the Start-up Business Class program.
In its reasoning, the Court emphasized the clarity of the regulatory provisions under the Immigration and Refugee Protection Regulations (IRPR), which mandate that SUBC applicants must submit their PR applications within the validity period of a commitment certificate (less than six months old). The Court rejected the applicants’ argument of an “established practice” within IRCC that would allow flexibility for expired certificates, stating that such claims lacked clear evidence. Crucially, the burden of proof lay with the applicants to demonstrate that the reissued commitment certificate had been directly submitted by Spark Innovation Centre to IRCC Montreal, which they failed to do. The Court noted that even Spark’s letters in response to the PFLs did not confirm direct submission to IRCC Montreal.
Regarding procedural fairness, the Court found no breach. It reiterated that regulatory requirements are clear, and the IRCC’s decision to issue a file number does not preclude later scrutiny of compliance issues. The Court also found no basis for the applicants’ claim of “legitimate expectation” for their applications to be processed despite non-compliance, as no clear, unambiguous, or unqualified representations were made by the Officer. Lastly, the Court confirmed that the refusal of the other three applicants’ PR applications was a direct consequence of Mr. Mostofi’s refusal, as per the express provisions of IRPR subsection 98(2), leaving the Officer with no discretion.
Key Takeaways
- Start-up Business Class (SUBC) applicants must ensure their commitment certificate is valid and less than six months old at the time of PR application submission.
- The designated entity (DE) is required to send the commitment certificate directly to IRCC Montreal, and the burden of proving this submission rests with the applicant.
- Claims of “established practice” by IRCC that deviate from explicit regulatory requirements must be supported by clear, unambiguous evidence and not merely an applicant’s interpretation.
- The issuance of an IRCC file number does not prevent officers from subsequently identifying and acting upon non-compliance with regulatory requirements.
- Legitimate expectations, which could impact procedural fairness, only arise from clear, unambiguous, and unqualified representations made by the decision-maker, not from an applicant’s assumptions or vague communications.
- Under IRPR subsection 98(2), if one essential member of an SUBC application team fails to meet regulatory requirements, the permanent residency applications of all other essential members are also subject to refusal.
Why It Matters
This decision from the Federal Court serves as a critical reminder for entrepreneurs and designated entities involved in Canada’s Start-up Business Class immigration stream about the strict adherence required for all regulatory provisions. It underscores the importance of meticulous compliance with application deadlines, commitment certificate validity, and proper submission protocols directly to IRCC. The ruling clarifies that applicants bear a significant burden in demonstrating that all necessary documentation has been correctly and timely submitted, and that assumptions about “established practices” or procedural leniency will not override explicit legislative requirements.
For immigration lawyers and their clients, this case highlights the need for rigorous due diligence in preparing SUBC applications and responding to IRCC inquiries. It also reinforces the cascading effect of non-compliance: a failure by one essential team member to meet requirements can lead to the refusal of an entire group’s PR applications. This case emphasizes that while administrative processes may evolve, the fundamental legal requirements remain paramount, and any challenges must be grounded in demonstrating compliance rather than relying on perceived procedural waivers or delays.