Case Law
Start-Up Visa Refusals Upheld: Primary Purpose Scrutiny

Start-Up Visa Refusals Upheld: Primary Purpose Scrutiny

Application for Judicial Review Dismissed
Citation
2022 FC 916
Decided
Court file
IMM-1355-21,IMM-6074-20
Full judgment
Read the decision

Case Law Overview

Phan v. Canada (Minister of Citizenship and Immigration), 2022 FC 916

Two applicants sought judicial review of decisions refusing their permanent resident visas under the Start-up Business Class. Officers found their primary purpose for engaging with a business incubator was to acquire status under the IRPA, not to engage in business activity.

Court Ruling

The Federal Court dismissed both applications, finding that the officers' decisions were reasonable. The Court affirmed that the officers did not err in applying the 'primary purpose' test under IRPR paragraph 89(b) without first assessing an 'intention to meet requirements' test under subsection 98.06(2).

Key Quote from the Court

The applicants did not identify any specific legal constraints on the officers' approach, interpretation or application of the IRPR provisions or on how the provisions interact. In particular, the applicants did not point to any express language in the provisions that required the officers to make a determination under subsection 98.06(2). Nor did the applicants suggest that the language in the IRPR made a determination under subsection 98.06(2) logically antecedent to a decision under paragraph 89(b), or that a decision under the latter provision could not legally stand without a decision under the former. (at para 57)

Expert Takeaways

  • Primary Purpose is Paramount Applicants in Start-up Business Class must genuinely intend to engage in business activity, not solely acquire permanent residence status. Officers will scrutinize the 'primary purpose' of incubator commitments.
  • Officer Discretion on Legal Interpretation The Court defers to officers' interpretation of IRPR provisions if it's reasonable. Applicants cannot assume a specific sequence of legal tests (e.g., 98.06(2) before 89(b)) unless explicitly mandated by legislation or binding precedent.
  • Demonstrate Business Progress Lack of tangible accomplishments, poor business models, and insufficient engagement with the venture can lead officers to conclude the 'primary purpose' is not genuine business activity, even if the program emphasizes 'potential'.
  • New Evidence on Judicial Review is Limited Evidence not presented to the immigration officer, and issues not raised at the administrative level, are generally not admissible or considered by the Federal Court on judicial review, unless specific exceptions apply (e.g., procedural fairness issues that were not known).

There is a deadline on this

15 days
if the decision was made inside Canada
60 days
if the decision was made outside Canada

That is the window to file an Application for Leave and for Judicial Review at the Federal Court, counted from the day you were notified of the decision. An extension can be requested, but it is granted at the Court's discretion - it is not automatic.

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Disclaimer

The information provided in this article is for general informational purposes only and does not constitute legal advice. Immigration law is complex and subject to change. For advice specific to your situation, please schedule a consultation with a qualified legal professional.

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Questions people ask after reading a case like this

Does this mean my own case will succeed?

No. Every application is decided on its own record. A reported decision shows how the Federal Court has reasoned about a particular kind of error - it does not predict the result of a different file. What it can tell you is whether the problem in your refusal is the kind of problem the Court has been willing to intervene on.

How long do I have to challenge a refusal?

Under the Immigration and Refugee Protection Act you generally have 15 days to file an Application for Leave and for Judicial Review if the decision was made inside Canada, and 60 days if it was made outside Canada, counted from when you were notified. The Court can extend that period, but an extension is discretionary - it is not automatic.

What actually happens at the Federal Court?

Judicial review has two stages. You file the application and a written record, and a judge decides on paper whether to grant leave - permission for the case to proceed. If leave is granted, there is a hearing. The Court does not re-decide your immigration application; it decides whether the officer's decision was reasonable and procedurally fair. If you succeed, the file is normally sent back to be decided again by a different officer.

Do I have to be in Canada to bring an application?

No. Applicants outside Canada regularly bring judicial review applications, which is why the longer 60-day deadline exists for decisions made abroad. Applicants are not normally required to attend in person.

What happens in the free 15-minute review?

You explain what was refused or delayed and when you were notified. We tell you whether your filing window is still open, which issues in the decision look arguable, and what the realistic options are - including reapplying instead of litigating, where that is the better route. There is no obligation to retain us afterwards.

Ali Dadkhah

Written by

Ali Dadkhah

Ali Dadkhah is a litigator whose practice is dedicated to challenging government decisions at the Federal Court of Canada. He specializes in judicial review, providing a crucial avenue for recourse for individuals and businesses who have faced unfair or unreasonable administrative outcomes. Bilingual legal support in English and Persian (Farsi)

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