The Federal Court has ordered a reconsideration of a work permit application from an Iranian executive after finding that a visa officer misapprehended key evidence and failed to provide transparent reasons for the refusal.
The decision impacts companies seeking to transfer senior personnel to Canada under the intra-company transferee (ICT) program.
In Bahramabadi v. Minister of Citizenship and Immigration, the applicants — H.G.B., his wife M.N.M., and their two sons —sought judicial review of a visa officer’s decision denying their visa applications. H.G.B. is a co-founder and managing director of an Iranian wholesale food manufacturing business planning to establish a wholly owned Canadian subsidiary. He applied for a Labour Market Impact Assessment (LMIA) exempt work permit under exemption code C61, which applies to employees establishing a branch, subsidiary, or affiliate of a multinational corporation.
The visa officer refused the work permit, expressing doubts about Parent Co’s multinational status, the viability of the business plan for Canada Co, and whether the plan presented a significant benefit to Canada as required by section 205(a) of the Immigration and Refugee Protection Regulations (IRPR).
The applicants argued that the decision was unreasonable because the officer misapprehended the evidence, failed to follow the guidelines under exemption code C61, applied a more stringent evidentiary standard than a “balance of probabilities,” and did not justify the conclusion that the business plan was neither viable nor beneficial to Canada.
Justice Michael D. Manson agreed with the applicants, stating that “the Officer misapprehended the evidence that shows that the Iranian parent company continues to own a factory in Kerman, Iran.” The court found that the officer incorrectly concluded that Parent Co had sold its factory in Kerman, whereas the contract of sale included in the application actually showed H.G.B. as the purchaser of the property.
Furthermore, the court found that “the Officer’s analysis of the funds available to finance Canada Co while maintaining Parent Co’s operations lacked transparency.” The officer questioned the availability of funds, noting that Parent Co’s liquid assets would be significantly reduced after providing $300,000 CAD as start-up capital for Canada Co, leaving only $88,268 CAD to maintain operations in Iran. The officer also dismissed the possibility of H.G.B. utilizing his personal funds without adequate explanation.
While the court acknowledged that it was reasonable for the officer to consider the sufficiency of start-up capital and the continuing viability of Parent Co, it emphasized that all relevant evidence should be addressed. “The Officer failed to explain why they had any concerns with [H.G.B.]’s ability to utilize his personal funds,” the judgment stated.
The court also examined other aspects of the officer’s decision. The applicants contended that the officer imposed requirements not found in the C61 Guidelines, such as needing evidence of a physical premises in Canada or contracts with Canadian suppliers. The court found it reasonable for the officer to note the absence of a lease or rental agreement, given that the application stated that an office had already been secured. Additionally, the officer was within their rights to question the viability of the business plan due to the lack of evidence showing key steps to secure Canadian suppliers and distribution channels.
However, the court concluded that the errors regarding the misapprehension of evidence and the lack of transparency were significant enough to render the decision unreasonable. “Together, these errors amount to more than a minor misstep and are sufficiently serious to warrant remitting the case back to a new officer,” Justice Manson wrote.
The court granted the application for judicial review and remitted the matter to a different officer for reconsideration, without the 30-day deadline requested by the applicants. It did not grant the applicants’ request for costs or an order granting the visas outright, stating that “the outcome of the applications are not inevitable and do not warrant an order granting the visas.”
Companies planning to transfer executives or key personnel to Canada should ensure that their business plans are detailed, viable, and supported by sufficient evidence, including financial statements, property deeds, and any contracts or correspondence with Canadian partners or suppliers. The decision serves as a reminder that while the ICT program offers opportunities for international businesses, compliance with regulatory requirements and guidelines is crucial.
For more information, see Ghasemizadeh Bahramabadi v. Canada (Citizenship and Immigration), 2024 FC 1787 (CanLII).
