Vahdad v. Canada (Citizenship and Immigration), 2024 FC 2009 : Federal Court Quashes C41 Spousal Open Work Permit Refusal After Officer Added an Unauthorized “Active Business” Requirement

The Federal Court reviewed IRCC’s refusal of Susan Vahdad’s open work permit application under International Mobility Program exemption code C41 and the related refusal of her adult son’s temporary resident visa. The officer was not satisfied that her spouse was working in accordance with his Canadian work permit because the application allegedly showed only that his company existed on paper, without proving that it was actively conducting business. The Court granted judicial review because the officer imposed an eligibility requirement that did not appear in the applicable program guidelines, legislation, or jurisprudence.

Key Principle

For a spousal open work permit under exemption code C41, the applicant must establish that the principal foreign national is authorized to work in Canada and is employed or will be employed in an eligible high-skilled occupation. Evidence such as a valid work permit, employment agreement, employer letter, and affidavit confirming the position and salary may satisfy this requirement. An officer cannot substitute a different threshold requiring proof that the employer is actively conducting business unless that requirement is supported by the legislation, guidelines, or applicable law.

Background

The principal applicant’s spouse founded a construction company in Iran and later established a Canadian subsidiary. He received a Canadian work permit to work as a construction manager, valid until June 2025.

The principal applicant applied for an open work permit as the spouse of a high-skilled foreign worker. She submitted the Canadian company’s incorporation records, share certificates, her spouse’s employment agreement, his work permit, and his affidavit confirming that he worked as a construction manager and chief executive officer with an annual salary of $72,800.

The officer nevertheless found that the company appeared to exist only on paper and that there was no proof it was actively doing business. The officer was therefore not satisfied that the spouse was working in accordance with his work permit.

The applicant’s son’s TRV application was also refused on temporary-intent and financial grounds.

Court Findings

• Required Employment Evidence Was Provided

The applicant submitted an employment agreement, valid work permit, affidavit, salary information, and documents identifying the spouse’s high-skilled occupation.

• Guidelines Did Not Require Proof of Active Business Operations

The applicable C41 guidelines required proof that the principal foreign national was employed or would be employed in an eligible occupation. They did not require operational or financial records proving that the employer was actively conducting business.

• Officer Applied a Different Eligibility Threshold

Requiring proof that the company was doing business and that the spouse was working precisely according to the work permit conditions introduced a requirement not found in the governing framework.

• Finding Amounted to a Veiled Credibility Concern

Rather than assessing whether the submitted employment evidence was sufficient, the officer implicitly questioned the legitimacy of the company and the spouse’s employment without identifying a proper legal basis.

• Son’s TRV Refusal Was Also Unreasonable

The parties agreed that the son’s application was tied to the principal applicant’s work permit application. Once the work permit refusal was set aside, the related TRV refusal could not stand.

Outcome

The Federal Court granted judicial review, set aside both refusals, and returned the applications to a different officer for redetermination. No costs were awarded, and no question was certified.

Case Citation:

Vahdad v. Canada (Citizenship and Immigration), 2024 FC 2009 (CanLII)