Bui v. Canada (Citizenship and Immigration), 2019 FC 440 : Start-Up Visa Refusal Upheld Where Applicant Failed to Prove Business Commitment Was Primarily for Genuine Business Activity Rather Than Immigration Status

The Federal Court reviewed the refusal of a permanent residence application under the Start-Up Business Class.

The applicant proposed a technology business connecting Vietnamese agricultural producers directly with tourists and customers. Although he had obtained a commitment from a designated business incubator, the visa officer concluded that he had not established that his participation in the incubator arrangement was primarily for genuine business activity rather than for the purpose of obtaining immigration status in Canada.

Key Principle

A commitment certificate from a designated incubator does not automatically establish eligibility under the Start-Up Visa Program.

The applicant still bears the burden of proving, on a balance of probabilities, that participation in the business arrangement is primarily for the purpose of carrying out the proposed business activity and not primarily to acquire immigration status or another benefit under IRPA.

An officer may also rely on a peer review of the designated organization’s due diligence, although the officer is not bound by the peer review findings.

Background

The applicant, a Vietnamese citizen, proposed to establish Savago Technologies Ltd. in Vancouver. The business concept involved a mobile platform connecting agricultural producers in Vietnam with tourists and consumers while avoiding wholesalers.

He obtained a commitment from Empowered Startups Ltd., a designated business incubator.

The officer requested a peer review of Empowered’s due diligence. The review concluded that the incubator had conducted an insufficient level of due diligence before accepting the applicant’s business proposal.

A Procedural Fairness Letter subsequently raised several concerns, including limited evidence of business development, the absence of supporting documentation for claimed discussions with Canadian universities, an alleged agreement with a Vietnamese ministry, the formation of an advisory team, and the lack of significant progress despite the passage of several months.

Court Findings

The applicant first argued that the peer review process was procedurally unfair because he was not invited to participate and did not receive the peer review report before responding.

The Court rejected this argument. The peer review process was directed primarily at assessing the designated incubator’s due diligence, not the applicant personally.

More importantly, the visa officer remained the ultimate decision-maker and provided the applicant with a detailed PFL identifying the concerns arising from the peer review and the application itself. The applicant therefore had sufficient notice of the case to meet and a meaningful opportunity to respond.

The Court also upheld the substantive refusal.

The applicant had a valid work permit and claimed to have developed relationships with universities, engaged business advisors, entered into an agreement with a Vietnamese ministry, and advanced the Savago venture. However, he provided little documentary evidence substantiating these claims.

The officer was therefore entitled to question whether meaningful business development had actually occurred and whether the applicant’s primary motivation for entering the incubator commitment was genuine commercial activity.

The Court acknowledged that the Ministerial Instructions did not require the applicant to first operate the business in Vietnam before launching it in Canada. However, that did not undermine the broader concern regarding insufficient evidence of genuine progress and business activity.

Outcome

The Federal Court dismissed the application for judicial review, finding no breach of procedural fairness and concluding that the officer reasonably determined that the applicant had not established the bona fides of his Start-Up Visa commitment.

Case Citation:

Bui v. Canada (Citizenship and Immigration), 2019 FC 440 CanLII