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The Principal Applicant (“PA”) and her son are citizens of Iran. The PA’s spouse founded a construction company in Iran in 1995, and a Canadian subsidiary of the company was created in June 2021. In June 2023, the PA’s spouse was issued a work permit to work as a construction manager for the Canadian subsidiary, valid to June 2025.
In August 2023, the PA applied for an open work permit under the International Mobility Program (C-41 exemption) and her son applied for a Temporary Resident Visa (“TRV”).
In January 2024, the PA’s work permit application was refused on the basis that the Officer was not satisfied she would leave Canada at the end of her stay and that the purpose of her visit to Canada was not consistent with a temporary stay. The Global Case Management System (“GCMS”) notes stated that there was no proof that the Canadian subsidiary “is doing business” and that the Officer was not satisfied that the PA’s spouse “is working per condition [sic] of their [work permit]”.
The son’s TRV application was also refused on the basis of assets and financial situation insufficient to support the stated purpose of travel, significant family ties in Canada, and purpose of visit not consistent with a temporary stay.
The Applicants and the Respondent both referred the Court to IRCC’s Guidelines entitled “Family members of foreign nationals authorized to work in high-skilled occupations (TEER 0, 1, 2 or 3) [R205(c)(ii) – C41 and C46] – Canadian interest – International Mobility Program (IMP)”, which state:
Eligibility
For the dependent family member to be eligible under subparagraph R205(c)(ii), administrative codes C41 or C46, the principal foreign national must, at the time of decision on the family member application, meet all of the following requirements. The principal foreign national must:
be authorized to work in Canada by reason of either
- a valid work permit or provisional approval (that the letter of introduction has been issued) for a work permit (employer-specific or open)
…..
And
be authorized (that the work permit issued) or be provisionally approved (that the letter of introduction was issued) to work in Canada for a period of at least 6 months or longer after the receipt date of the family member’s open work permit application
…..
be employed or will be employed in a high-skilled occupation (TEER 0, 1, 2 or 3 or if before November 16, 2022, NOC 0, A or B)
be physically residing or plan to physically reside in Canada while employed For Quebec Selection Certificate (CSQ) holders and provincial nominees: be physically residing or plan to reside in the province of nomination or selection
be in one of the following situations:
- be in a genuine relationship with the applicant as a spouse or common-law partner
- be the parent of the applicant who is a dependent child as defined in section R2.
Documentary evidence
With the application for an open work permit, officers should be satisfied that they have the following documentary evidence to make an assessment:
1. evidence of a genuine relationship if the applicant is the spouse or common-law partner;
- For example…evidence that the dependent child meets the definition of R2
2. evidence that the principal foreign national is or will be employed in, in TEER category 0, 1, 2 or 3 occupation (or if the application was received before November 16, 2022, in NOC skill type 0 or level A or B)
- For example, job contract, letter from employer indicating NOC TEER category and duties.
…..
3. evidence that their principal foreign national is authorized or is provisionally approved to work in Canada and the authorization is not within the exceptions stated in Eligibility
- For example, copy of work permit or copy of visitor record indicating work under section R186, or passport stamps showing period of authorized stay, evidence that their principal foreign national has been provisionally approved for a work permit (that the letter of introduction is issued).
4. evidence that their principal foreign national’s authority or provisional approval to work in Canada is valid for 6 months or longer after the receipt date of the family member’s work permit application
- For example, copy of a work permit or passport stamps showing period of authorized work (for work-permit exempt foreign nationals) or copy of the letter of introduction.
(emphasis in original)
Madam Justice Strickland noted that in her application, the PA provided the certificate of incorporation and the articles of incorporation of the Canadian subsidiary, share certificates, and an employment agreement between the subsidiary and her spouse employing him as a construction manager. The PA also provided a copy of her spouse’s work permit and an affidavit from the spouse indicating that he was employed by the subsidiary and indicating his annual salary.
The Guidelines are not legally binding, but can help officers exercise their discretion and the Court to ascertain the reasonableness of an officer’s decision. In this case, the PA provided evidence meeting the eligibility criteria of the Guidelines. The Officer did not assess the sufficiency of the evidence, but instead was concerned with whether the Canadian subsidiary was doing business as contemplated by the business plan submitted by the spouse and whether he was working per the conditions of his work permit.
According to Madam Justice Strickland at para 22: A requirement to establish that a principal foreign national is “employed” is different than a requirement to establish that the company employing them is “actively doing business” or that they are working in accordance with the conditions of their work permit. The Respondent does not point to any legislative requirement (nor did the Officer in their reasons), any provision within the Guidelines or any case law supporting that the Principal Applicant was also required to prove that the company employing the Spouse “is doing business”.
And at para 23: In my view, the Officer’s finding that they were not satisfied that the Spouse “is working per condition [sic] of their [work permit]” and their finding that there was “no proof that the company is doing business” imposes a different eligibility threshold and raises different questions than contemplated by the Guidelines, which only require proof that the principal foreign national is “employed or will be employed in a high-skilled occupation”. In effect, the Officer made a veiled credibility finding as to the legitimacy of the Spouse’s business operations.
The Officer’s decision was unreasonable as it imposed a new eligibility requirement not found in the Guidelines or elsewhere. As the son’s TRV application was tied to the PA’s work permit application, the decision to refuse the TRV was also unreasonable.
See: Vahdad v. Canada (Citizenship and Immigration), 2024 FC 2009, <https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/527094/index.do>.
If you need legal advice regarding a spousal open work permit (C-41) application or a temporary resident visa application, please contact Heron Law Offices to book a consultation with one of our experienced immigration lawyers.
