Date: 20230331

Docket: IMM-2915-22

Citation: 2023 FC 464

Ottawa, Ontario, March 31, 2023

PRESENT: The Hon Mr. Justice Henry S. Brown

BETWEEN:

MAJID HAGHSHENAS

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I. Nature of the matter

[1] This is an application for judicial review of a decision by an Immigration Officer [Officer] at the Embassy of Canada in Ankara, Turkey, dated March 18, 2022, in which the Officer was not satisfied that the Applicant would leave Canada at the end of his stay due to the purpose of his visit.

II. Facts

[2] The Applicant is a 33-year-old citizen of Iran who applied for a LMIA-exempt work permit under the C11 category. This category is targeted towards entrepreneurs and self-employed candidates seeking to operate a business. The Applicant submitted his application for a work permit on October 5, 2021. The Application was refused five months later, on March 18, 2022.

III. Decision under review

[3] The Officer’s refusal letter states that, “I am not satisfied that you will leave Canada at the end of your stay, as stipulated in subsection 200(1) of the IRPR, based on the purpose of your visit.” The specific reasons are contained within the Officer’s GCMS notes, which read in full:

I have reviewed the application.

The applicant's intended employment in Canada does not appear reasonable given:

Applicant proposes to start an elevator/escalator installation and servicing business.

The business plan indicates the hiring of one elevator mechanic and one elevator engineer. Salary estimate for the engineer are below provincial average.

The business plan projects considerable profits of over $540,000 in the first year without having provided any evidence of potential clients or contracts. The projected revenues are based on the average obtainable market share. Therefore, the revenue projections are speculative.

The business plan includes rental estimate for commercial office space but does not include estimates for suitable industrial/warehouse space that would be required for equipment and components to support such an installation company.

Indicates that the company will register as a licensed contractor for elevator and escalator installation as required by legislation; however, no evidence has been provided that this process has been completed and therefore it is unclear as to whether or not the business entity would be found to meet these requirements.

Based on the aforementioned I am not satisfied that the applicant has presented a business plan that would represent a significant benefit to Canada.

Weighing the factors in this application. I am not satisfied that the applicant will depart Canada at the end of the period authorized for their stay.

For the reasons above, I have refused this application.

IV. Issues

[4] The Applicant submits the following issues:

• 1)Whether the DM breached procedural fairness and reasonableness?

• 2)Whether the impugned decision is unreasonable as not having nexus with the evidence on the file and being based on extraneous considerations?

V. Standard of Review

[5] As both reasonableness and procedural fairness are in issue, I will consider both.

A. Procedural fairness

[6] Questions of procedural fairness are reviewed on the correctness standard: Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, per Binnie J at para 43. That said, I note in Bergeron v Canada (Attorney General), 2015 FCA 160, per Stratas JA at para 69, the Federal Court of Appeal says a correctness review may need to take place in “a manner ‘respectful of the [decision-maker’s] choices’ with ‘a degree of deference’: Re: Sound v Fitness Industry Council of Canada, 2014 FCA 48, 455 N.R. 87 at paragraph 42.” But see Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [per Rennie JA]. In this connection I also note the Federal Court of Appeal’s recent decision holding judicial review of procedural fairness issues is conducted on the correctness standard: see Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 per de Montigny JA [Near and LeBlanc JJA concurring]:

[35] Neither Vavilov nor, for that matter, Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, have addressed the standard for determining whether the decision-maker complied with the duty of procedural fairness. In those circumstances, I prefer to rely on the long line of jurisprudence, both from the Supreme Court and from this Court, according to which the standard of review with respect to procedural fairness remains correctness.

[7] I also understand from the Supreme Court of Canada’s teaching in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paragraph 23 that the standard of review for procedural fairness is correctness:

[23] Where a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decisions other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness.

[Emphasis added]

[8] In Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 50, the Supreme Court of Canada explains what is required of a court reviewing on the correctness standard of review:

[50] When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.

B. Reasonableness

[9] With regard to reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued at the same time as the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov], the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:

[31] 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” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).

[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).

[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).

[Emphasis added]

[10] In the words of the Supreme Court of Canada in Vavilov, a reviewing court must be satisfied the decision-maker’s reasoning “adds up”:

[104] Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.

[105] In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision: Dunsmuir, at para. 47; Catalyst, at para. 13; Nor-Man Regional Health Authority, at para. 6. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.

[Emphasis added]

[11] Furthermore, Vavilov makes it abundantly clear the role of this Court is not to reweigh and reassess the evidence unless there are “exceptional circumstances”. The Supreme Court of Canada instructs:

[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.

[Emphasis added]

[12] The Federal Court of Appeal recently held in Doyle v Canada (Attorney General), 2021 FCA 237 that the role of this Court is not to reweigh and reassess the evidence:

[3] In doing that, the Federal Court was quite right. Under this legislative scheme, the administrative decision-maker, here the Director, alone considers the evidence, decides on issues of admissibility and weight, assesses whether inferences should be drawn, and makes a decision. In conducting reasonableness review of the Director’s decision, the reviewing court, here the Federal Court, can interfere only where the Director has committed fundamental errors in fact-finding that undermine the acceptability of the decision. Reweighing and second-guessing the evidence is no part of its role. Sticking to its role, the Federal Court did not find any fundamental errors.

[4] On appeal, in essence, the appellant invites us in his written and oral submissions to reweigh and second-guess the evidence. We decline the invitation.

[13] In the work permit visa context, the following are also relied upon. In Baran v Canada (MCI), 2019 FC 463 at para 16 per McVeigh J:

[15] The standard of review applicable to the Officer’s decision to refuse a work permit application is reviewable on the standard of reasonableness, as per Dunsmuir v New Brunswick, 2008 SCC 9 and Sulce v Canada (Citizenship and Immigration), 2015 FC 1132 at paragraph 7 [“Sulce”]. Any procedural fairness issues are reviewable on a correctness standard.

[16] However, I note that as work permit applications do not raise substantive rights since visa applicants do not have an unqualified right to enter Canada, the level of procedural fairness is low, as per Sulce, above, at paragraph 10.

[Emphasis added]

[14] Also see Ekpenyong v Canada (MCI), 2019 FC 1245 at paras 20 per Pentney J:

[20] As set out in Mohammed v Canada (Citizenship and Immigration), 2017 FC 992 at para 13:

There are several guideposts for this analysis which are clearly established: (1) there is a legal presumption according to which any person seeking to enter Canada is presumed to be an immigrant; it is up to the applicant to rebut this presumption: Danioko v Canada (Citizenship and Immigration), 2006 FC 479 at para 15; (2) it is not for the Court to re-weigh the evidence; (3) the Officer is presumed to have reviewed all of the evidence unless the contrary is shown (Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (QL) (FCA)) and is not required to make reference to every document submitted (Hassan v Canada (Minister of Employment and Immigration) (1992), 147 NR 317, [1992] FCJ No 946 (QL) (FCA); Zhou v Canada (Citizenship and Immigration), 2013 FC 465 at para 20; (4) the Officer’s reasons for decision include the form and the letter, as well as the GCMS notes prepared for the case.

[Emphasis added]

[15] More generally, in Penez v Canada (MCI), 2017 FC 1001 at paragraph 37 my colleague Gascon J. held:

[37] Visa officers are therefore generally not required to provide applicants with opportunities to clarify or further explain their applications (Onyeka v Canada (Citizenship and Immigration), 2009 FC 336 at para 57). The onus remains on applicants to provide all the necessary information to support their application, not on the Officer to seek it out (Ismaili v Canada (Citizenship and Immigration), 2012 FC 351 at para 18; Singh v Canada (Citizenship and Immigration), 2010 FC 212 at para 11; Arango v Canada (Citizenship and Immigration), 2010 FC 424 at para 15). Indeed, it is well-established that the Officer had no legal obligation to seek out explanations or more ample information to assuage concerns relating to Ms. Penez’s study permit application by way of a ‘Procedural Fairness Letter’ or any other means (Solopova at para 38; Mazumder v Canada (Minister of Citizenship and Immigration), 2005 FC 444 at para 14; Kumari v Canada (Minister of Citizenship and Immigration), 2003 FC 1424 at para 7). Imposing such an obligation on a visa officer would amount to giving advance notice of a negative decision, which has been rejected by this Court on many occasions (Dhillon v Canada (Citizenship and Immigration), [1998] FCJ No 574 (QL) at paras 3-4; Ahmed v Canada (Citizenship and Immigration), [1997] FCJ No 940 (QL) at para 8).

[Emphasis added]

[16] And I also rely on the decision of Leblanc J. (as he was then) in Sulce v Canada (Citizenship and Immigration), 2015 FC 1132, which has been cited and applied with approval on many occasions:

[10] It is well-settled that it is up to a temporary work permit applicant to provide all relevant supporting documentation and sufficient credible evidence to satisfy a visa officer that he can fulfill the job requirements. In other words, it is for the applicant to put his best case forward (Silva v Canada (Citizenship and Immigration), 2007 FC 733, at para 20; Grusas, above at para 63; Singh v Canada (Citizenship and Immigration), 2015 FC 115, at para 25[Singh]). In such context, and keeping in mind that visa applications do not raise substantive rights since visa applicants do not have an unqualified right to enter Canada, the level of procedural fairness is low and generally does not require that temporary work permit applicants be granted an opportunity to address the visa officer’s concerns (Grusas, above at para 63; Ali v Canada (Citizenship and Immigration), 2011 FC 1247, 398 FTR 303, at para 85; Grewal, above at para 18). This is particularly the case where there is no evidence of serious consequences to the applicant, where for example the applicant is able to reapply for a work permit and there is no evidence that doing so will cause him or her hardship (Qin v Canada (Minister of Citizenship and Immigration), 2002 FCT 815, [2002] FCJ No 1098, at para 5; Masych v Canada (Citizenship and Immigration), 2010 FC 1253, at para 30).

[11] However, in cases where a visas officer’s concern does not arise directly from the Act or Regulations but rather relates to the credibility, accuracy, or genuine nature of the information submitted by an applicant, this Court has held that the officer may have a duty to request further information from a temporary work permit applicant (Singh, above at para 25; Hassani v Canada (Citizenship and Immigration), 2006 FC 1283, 302 FTR 39).

[…]

[16] As a general rule, procedural fairness, be it in the context of skilled workers or temporary workers classes, does not stretch to the point of requiring that a visa officer be obliged to provide visa applicants with a “running score” of the weaknesses in their applications or to engage in a dialogue with them on whether the Act and Regulations are satisfied (Rukmangathan v Canada (Minister of Citizenship and Immigration), 2004 FC 284, 247 FTR 147, at para 23; Chen v Canada (Citizenship and Immigration), 2011 FC 1279, at para 22; Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 1306, [2010] FCJ No 1663, at paras 40-42).

VI. Analysis

A. Legislative background

[17] For reference, paragraph 200(1)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations], reads as follows:

[18] In addition, section 205(a) of the Regulations states:

[19] Also, see subsection 22(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], which reads:

B. Parties’ submissions and analysis

(1) Procedural fairness

[20] The Applicant submits that the level of procedural fairness required in this case is relatively high because the Officer’s decision is final, and a negative decision has an adverse impact on the Applicant’s life and business. With respect, that is not the law which in this regard is as set out above. The duty of fairness lies at the low end, and is triggered, if at all, when matters such as credibility or accuracy issues are raised. I am not persuaded either were at issue in this case.

[21] Moreover, there is no duty to provide a running score, nor to give advance notice of a negative decision, not to engage in a dialogue with applicants. The general rule is that it is up to the Applicant to satisfy the officer. While the Applicant says he was entitled to a procedural fairness letter, I am not persuaded that duty is engaged in this case which is relatively straight forward.

[22] The Applicant notes that his application was delayed for nearly 5 months and a decision was ultimately reached through the assistance of artificial intelligence. I am not satisfied either is relevant to the duty of procedural fairness.

[23] First of all, a delay does not entitled the grant of judicial review, nor trigger any higher duty of fairness than just outlined.

[24] As to artificial intelligence, the Applicant submits the Decision is based on artificial intelligence generated by Microsoft in the form of “Chinook” software. However, the evidence is that the Decision was made by a Visa Officer and not by software. I agree the Decision had input assembled by artificial intelligence, but it seems to me the Court on judicial review is to look at the record and the Decision and determine its reasonableness in accordance with Vavilov. Whether a decision is reasonable or unreasonable will determine if it is upheld or set aside, whether or not artificial intelligence was used. To hold otherwise would elevate process over substance.

[25] The Applicant also expresses concern because he was not provided with the GCMS notes with the decision letter. There is no merit in this submission. It is well-established the Respondent is not obliged to provide applicants with the Officer(s) entire working file(s) along with the decision letter. This makes sense because some such working files may be extensive and voluminous. If an applicant wished to see the entire working file electronic or otherwise underlying their decision, they must ask for it: Cao v Canada (Citizenship and Immigration), 2022 FC 1696:

[44] First, it is well established that reasons for a decision found in the Officer’s GCMS notes are a constituent part of an administrative decision maker’s decision: Wang v MCI, 2006 FC 1298 at paras 21 – 23 and Singh v MCI, 2006 FC 1428 at para 2.

[45] Secondly, if the Applicant was dissatisfied with the reasons for decision found in the Refusal letter, it was incumbent upon him to seek further elaboration under Rule 9 rather than bring an application for leave and judicial review claiming that the reasons are inadequate: Marine Atlantic Inc. v Canadian Merchant Service Guild, 2000 CanLII 15517 (FCA) at paras 4-8 and Hayama v MCI, 2003 FC 1305 at para 15.

[46] I note this has been the law for more than two decades.

[26] The Applicant also argues in effect a variant of bias or apprehended bias on the part of the Officer. There is nothing to support this suggestion.

(2) Reasonableness of the Officer’s decision

[27] The Applicant submits that the Officer’s reasons for the decision are arbitrary in light of the evidence, which does not suggest that the Applicant’s purpose of visiting Canada differs from those noted in the permit application. Specifically, the Applicant points to the Applicant’s travel history as containing trips to France, the UAE and Turkey and return to Iran thereafter. Moreover, the Applicant notes that his wife and children are not accompanying him to Canada, which provides a strong incentive to return to his family. With respect, the Officer is deemed to have considered all the evidence and I am not persuaded to reweigh and reassess the evidence in this case in this respect given the absence of exceptional circumstances.

[28] Regarding the use of the “Chinook” software, the Applicant suggests that there are questions about its reliability and efficacy. In this way, the Applicant suggests that a decision rendered using Chinook cannot be termed reasonable until it is elaborated to all stakeholders how machine learning has replaced human input and how it affects application outcomes. I have already dealt with this argument under procedural fairness, and found the use of artificial intelligence is irrelevant given that (a) an Officer made the Decision in question, and that (b) judicial review deals with the procedural fairness and or reasonableness of the Decision as required by Vavilov.

[29] Moreover, the Applicant submits that his evidence proves he meets the definition of “significant benefit” as per section 205 of the Regulations. In this regard, the Applicant provides his own assessment of the evidence. In the Applicant’s view, the Officer only conducted a perfunctory assessment of the case despite its immense importance to the Applicant. With respect, and speaking generally, this submission misapprehends the nature of judicial review, which is not a place for reweighing and reassessing the evidence, absent exceptional circumstances. Disagreement with the outcome does not justify judicial review without significantly more.

[30] On the duty to provide reasons, correctly in light of the jurisprudence cited above, the Respondent takes the position a visa officer’s obligations fall at the lower end of detail and formality. The Respondent also points to this Court’s decision in Wardak v Canada (Citizenship and Immigration), 2020 FC 582, where Elliott J stated the following:

[71] In this matter, the Visa Officer reviewed the evidence that was provided then made brief mention and observations about that evidence in the GCMS notes. That is sufficient. In the context of a work permit application, a visa officer does not need to provide extensive reasons: Singh v Canada (Citizenship and Immigration), 2015 FC 115 at paragraph 24.

[72] Mr. Wardak would have been aware that two of the relevant requirements in the legislation were that he provide satisfactory evidence of his ability to perform the work and that he would leave Canada at the end of his authorized period of stay. It was up to him to decide, with the guidance of the checklists, what evidence to submit.

[73] It was up to the Visa Officer to determine whether the evidence that Mr. Wardak did submit was sufficient. The determination was unfavourable to Mr. Wardak but not unreasonable.

[31] I also agree visa officers may use their general experience and knowledge of local conditions to draw inferences and reach conclusions on the basis of the information and documents provided by the Applicant. Their Decisions are entitled to respectful deference given their experience among other things.

[32] Finally, in assessing this matter, the Applicant submits the Office acted unreasonably because he did not need to show a proposed salary was tied to a provincial average, in respect of which he may have an issue, but on balance I am not persuaded this is material. In terms of the findings of profitability and projected revenues, I am not persuade either are unreasonable in that the latter is indeed speculative in that without more it assumes the Applicant will obtain a pro-rata share of overall revenue basically in year one (after three months) which was for the Office not this Court to weigh and assess. Whether the company has profitability of $549,000 in its first year or $220,000 is also speculative, and with respect, the Officer’s scepticism on this point is a finding open to the Officer “without [the Applicant] having provided any evidence of potential clients or contracts.” The Applicant says it was unreasonable to fault the business plan for its planned warehouse needs, which again is a matter for the Officer to assess giving the Officer credit and respectful deference to their experience in this connection. The Office was also entitled to assess Applicant’s ability to obtain relevant provincial approvals to enter the escalator installation and repair business in British Columbia.

VII. Conclusion

[33] Due to the absence of procedural unfairness and or unreasonableness, this application for judicial review will be dismissed.

VIII. Certified Question

[34] Neither party proposed a question of general importance, and none arises.

JUDGMENT in IMM-2915-22

THIS COURT’S JUDGMENT is that this application for judicial review is dismissed, no question is certified, and there is no order as to costs.

"Henry S. Brown"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-2915-22
STYLE OF CAUSE:	MAJID HAGHSHENAS v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	HELD BY WAY OF VIDEOCONFERENCE
DATE OF HEARING:	MARCH 28, 2023
JUDGMENT AND REASONS:	BROWN J.
DATED:	MARCH 31, 2023

APPEARANCES:

Afshin Yazdani	FOR THE APPLICANT
James Todd	FOR THE RESPONDENT

SOLICITORS OF RECORD:

YLG Professional Corporation Barrister and Solicitor Toronto, Ontario	FOR THE APPLICANT
Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT