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The Applicant applied for permanent residence under the Start-up Business Class Program and the application was refused because one of the essential members of her entrepreneurial team withdrew his application before a decision was made on the Applicant’s application.
The Applicant submitted her application in November 2020, indicating that she planned to come to Canada to start an information and communications technology business called NextProp with four individuals. The Applicant would be the Chief Operating Officer for this business. The Applicant and her team obtained a Commitment Certificate from a Designated Entity, which deemed all of the team members as “essential” to the entrepreneurial team.
After the Applicant submitted her application, the individual slated to be the Chief Executive Officer of NextProp withdrew from the application. The remaining team members created a new business plan without that individual and obtained an amended Commitment Certificate. The business name changed from NextProp to LinkProp, and the Applicant was appointed as the new Chief Executive Officer. The amended Commitment Certificate was submitted to IRCC in July 2022.
The Applicant’s application was refused in March 2023 on the basis of IRPR 98.01(2) and 98.08(2). The Global Case Management System (“GCMS”) notes state that the Applicant applied with the original Commitment Certificate in which the individual who withdrew was included, that the withdrawal of this individual rendered the Applicant ineligible as a member of the Start-up Business Class, and that the amended Commitment Certificate was submitted after her application had already been made.
The Applicant argued that all members listed as “essential” on the amended Commitment Certificate had pending permanent residence applications at the time of the Officer’s decision and that nothing in R 98.08(2) suggests that an officer must assess an applicant’s application against an initial Commitment Certificate, nor does the IRPR suggest that a Designated Entity cannot amend a Commitment Certificate if it is filed before a determination is made on a pending permanent residence application.
Madam Justice Aylen disagreed with the Applicant, writing at paras 16 and 17:
[16] The crux of the Applicant’s argument is that a proper interpretation of the IRPR allows a Designated Entity to amend a Commitment Certificate after an application for permanent residence is submitted but before a decision on such application is made.
[17] I reject the Applicant’s argument. Paragraph 98.01(2)(a) requires that an applicant have obtained a Commitment Certificate from a Designated Entity that is less than six months old on the date on which their application for a permanent residence visa is submitted. In this case, the original Commitment Certificate (issued November 6, 2020) was replaced with the Amended Commitment Certificate (issued July 15, 2022). The Amended Commitment Certificate was not less than six months old on the date on which the Applicant’s application was submitted (November 16, 2020).
Madam Justice Aylen went on to explain that the regulatory requirements of the Start-up Business Class are time sensitive and that applicants are not entitled to side-step these timing requirements by filing an amended Commitment Certificate after their application has been submitted.
Specifically, Madam Justice Aylen found that to accept what the Applicant proposes as a proper interpretation of R 98.01(2) and 98.08(2) would “invite mischief into the application process” by allowing “individuals to secure a spot in the processing queue prior to truly landing on a finalized business arrangement and then, while waiting to have their permanent residence applications processed, continue to fine-tune or potentially dramatically overhaul their planned business” (para 19).
In the Applicant’s case, the changes to the initial proposed start-up were significant as an essential member withdrew from the application, the company name changed, the business description changed, a new business plan was adopted, the company structure changed with the Applicant becoming the Chief Executive Officer, and the company’s legal and financial structure changed. In the face of such significant changes, the Officer’s decision was reasonable.
See: Tan v. Canada (Citizenship and Immigration), 2024 FC 1986<https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/527045/index.do>.
If you need legal advice regarding a Start-up Business Class Program application, please contact Heron Law Offices to book a consultation with one of our experienced immigration lawyers.
