Nguyen v. Canada (Citizenship and Immigration), 2019 FC 439 : Start-Up Visa Refusal Set Aside Where Officer Relied on Undisclosed Extrinsic Evidence About Competing Software Applications

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

The applicant proposed a mobile software platform connecting parents with daycares and nursery schools in Southeast Asia. The officer concluded that she had not established that her participation in the incubator commitment was primarily for genuine business activity rather than for obtaining immigration status.

The Court did not decide whether the officer’s substantive concerns were reasonable. Instead, it set the decision aside because the officer relied on information about similar software products already existing in several countries without giving the applicant an opportunity to respond.

Key Principle

Even though the level of procedural fairness owed in visa applications is relatively low, an applicant must still be given a meaningful opportunity to know and answer the case against them.

Where an officer relies on extrinsic evidence that may materially influence the decision, that information must ordinarily be disclosed to the applicant so that they can respond.

The relevant question is whether facts that were important or potentially important to the decision were used against the applicant without providing an opportunity to comment on them.

Background

The applicant, a Vietnamese citizen, applied for permanent residence through the Start-Up Business Class. Her proposed business involved developing a global mobile application connecting parents with daycare and nursery-school providers in ASEAN countries.

A designated business incubator, Empowered Startups Ltd., accepted the venture and issued the required commitment certificate.

The officer subsequently requested a peer review. The peer review panel concluded that Empowered had performed insufficient due diligence, raising concerns about whether the business idea had been properly validated and about the proposed development of Natural Language Processing technology.

The officer then issued a Procedural Fairness Letter identifying concerns about the viability of the business, the lack of evidence validating the proposed solution, and why the venture had not first been developed in Vietnam.

Court Findings

The decisive issue was not the fairness of the peer review itself.

The GCMS notes revealed that the officer had also considered the fact that similar software applications already existed in the United States, Vietnam, and Canada.

That concern was not included in the Procedural Fairness Letter. As a result, the applicant was never given an opportunity to explain how her proposed product differed from existing applications, whether the market remained viable, or why the existence of competing products did not undermine her business plan.

The Court held that this constituted reliance on extrinsic evidence.

Although officers are not required to disclose every piece of general information considered during decision-making, procedural fairness requires disclosure where the information may have a meaningful bearing on the result.

The Court could not determine how much weight the officer placed on the existence of competing applications. However, the GCMS notes showed that the information played at least some role in the assessment.

Because the significance of that undisclosed evidence could not be measured from the reasons, the Court concluded that the appropriate remedy was to set aside the refusal and have the application reconsidered by another officer.

Outcome

The Federal Court allowed the application for judicial review, set aside the Start-Up Visa refusal, and remitted the application to a different visa officer for reconsideration.

Case Citation:

Nguyen v. Canada (Citizenship and Immigration), 2019 FC 439 CanLII