Docket: IMM-12130-24
Citation: 2026 FC 141
Vancouver, British Columbia, January 30, 2026
PRESENT: The Honourable Mr. Justice Duchesne
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BETWEEN: |
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SEVIL ENTEZAMFAR |
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Applicant |
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and |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
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Respondent |
JUDGMENT AND REASONS
[1] The Applicant seeks judicial review of a decision made by an Immigration, Refugees and Citizenship Canada [IRCC] officer and decision maker on May 7, 2024, [the Decision] that refused the Applicant’s application for permanent residence under the Start-up Business Class [the Application].
[2] The Applicant’s application for judicial review is granted for the reasons that follow.
[3] The Decision under review was grounded on the Applicant’s apparent failure to provide information that had been sought by the decision maker through its procedural fairness letter dated February 7, 2024 [the PFL]. The decision maker reasoned that the Applicant’s failure to answer the PFL and to provide the information requested through it in a timely manner constituted a failure to answer questions that were put to her. The decision maker relied on subsection 16(1) of the Immigration and Refugee Protection Act, SC 2001, c 27, and refused the Application.
[4] The Decision itself mirrors the decision maker’s notes found in IRCC’s Global Case Management System [GCMS]. The GCMS notes form part of the decision maker’s reasons for decision (De Hoedt Daniel v Canada (Citizenship and Immigration), 2012 FC 1391 at para 51; Afridi v Canada (Citizenship and Immigration), 2014 FC 193 at para 20; Muthui v Canada (Citizenship and Immigration), 2014 FC 105 at para 3). The salient GCMS notes read as follows:
App # E002500019 - Refused
The assessment of your application for permanent residence has been completed and
it has been determined that you do not meet the requirements of this category.
Subsection 16(1) of the Immigration and Refugee Protection Act states that a person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
A letter was sent to you on February 07, 2024 requesting to produce the following evidence and documents to enable us to continue the processing of your application:
• Schedule A - from the age of 18 for applicant and spouse
• Police Certificate from all country/state where the residence period has been six months
• Funds - bank statements for the last 6 months
• Additional Family info - Spouse
This letter indicated that this evidence and these documents were required in order to complete the assessment of your application and determine that you are not inadmissible.
As the requested information was not received, I am not satisfied that you meet the requirements of the Start up Business Class. Application Refused.
[5] It is apparent from these GCMS notes that the Decision is predicated on the Applicant not responding to the PFL that had been purportedly sent to her on February 7, 2024.
[6] The evidence establishes that all of the communications between IRCC and the Applicant’s representative had occurred through email. The evidence also establishes that the Applicant’s representative received all of the other emails IRCC sent to him in connection with the Applicant’s Application before and after February 7, 2024. The evidence led by the Applicant is that the representative who had been representing her in connection with her Application at no time received any letter or email from IRCC that contained the PFL or referred to the PFL prior to the Decision.
[7] The Respondent does not contest the Applicant’s evidence in this regard.
[8] The Respondent nevertheless presents evidence that the PFL was sent to the Applicant’s representative on February 7, 2024. The evidence consists of a very brief affidavit sworn by a legal assistant who produces a copy of a letter that had been “kept in the ordinary and usual course of business by”
IRCC. The produced document appears to be the PFL dated February 7, 2024. The legal assistant’s affidavit states, “Attached hereto and marked as Exhibit A is the Procedural Fairness Letter sent February 7, 2024”.
While the produced document shows the Applicant’s representative’s email address on its face, there is no documentary evidence such as a copy of a sent email or an extract of an email log led by the Respondent to show that the PFL was ever actually sent by IRCC via email to the Applicant’s representative.
[9] The production through an affidavit of a document that may fall within the scope of government or business records pursuant to sections 33 or 42 of the Evidence Act, RSBC 1996, c 124, applicable here through section 40 of the Canada Evidence Act, RSC 1985, c C-5, which has an email address inscribed on it as the recipient’s address, does not, on its own, lead to the conclusion that the preserved document was in fact sent to its intended recipient. Absent additional evidence as to the document being sent the Court would have to infer facts or create evidence in order to conclude that such a document had in fact been sent (Westman v Westman et al, 2000 BCSC 29, at paras 12 to 15). The legal assistant’s affidavit here does not explain how they have personal knowledge that the PFL had in fact been sent as deposed to. There is no evidence that the legal assistant sent the email either. How the legal assistant came to learn or conclude that the PFL had been sent on February 7, 2024, is also not set out in the affidavit. A fair reading of the affidavit shows that the evidence led is that the legal assistant has personal knowledge of making a copy of a document, the PFL, and that the PFL was kept by IRCC in the ordinary course of business relating to the Applicant’s Application.
[10] Given the discrepancy between the affidavit evidence and the content of the exhibit produced through the affidavit, the Court must conclude that the PFL referred to in the Decision was not sent by IRCC to the Applicant’s representative at any time prior to the Decision.
[11] The Court’s conclusion is further supported by the observation that the PFL is not included in the certified tribunal record produced by IRCC following the Court’s request for a certified tribunal record to be produced.
[12] It has been established by the jurisprudence of this court in Yazdani v Canada (Citizenship and Immigration), 2010 FC 885 at paras 46 and 47 and in Abboud v Canada (Citizenship and Immigration), 2010 FC 876 [Abboud] at paras 14 to 19, that IRCC has the onus of ensuring that an email to be sent to an applicant is in fact actually sent to the applicant at issue. This Court has further held that when an applicant informs IRCC that they did not receive correspondence that had been purportedly delivered to them, the IRCC officer should give the applicant an opportunity to provide the documents requested through the failed communication prior to making a decision. This Court held that a failure to do so is “a flagrant violation of the requirements of procedural fairness”
(Abboud at para 18).
[13] The Respondent sought to rehabilitate the Decision during the hearing by arguing that the Decision is justified due to the Applicant’s failure to provide all of the information required for the Application to be accepted from the outset. The argument made invites the Court to ignore the fact that the Decision is plainly based the Applicant’s failure to respond to the PFL. The Court must refuse the Respondent’s invitation.
[14] I agree with the Applicant that the IRCC in this case violated the requirement of procedural fairness by refusing the Applicant’s Application on the basis of her failure to respond to a PFL that she did not receive because the IRCC did not sent it to her. The process followed by IRCC in coming to the Decision in this case was neither just nor fair (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54).
[15] It also seems obvious that IRCC’s refusal of the Applicant’s Application was unjustified and unreasonable because it was based on a fact that did not exist in the record before it (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 101). I find that the IRCC’s decision is unreasonable in addition to having been made in breach of the requirements of procedural fairness.
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