AFIFI v. BRITISH COLUMBIA (MINISTER OF JOBS, TOURISM AND SKILL TRAINING) 2020 BCSC 1449

Court refused reviewing the decision of PNP as withdrawal of nomination certificate was reasonable and within their authority.

Petitioner had applied to Provincial Nominee Program (PNP) under the Business-Immigration program-regional business (Entrepreneur program). Post approval from PNP, the petitioner entered into a performance agreement in 2013 for establishing a beauty salon and spa business in British Columbia. Thereafter, PNP issued a letter of confirmation and supported petitioner’s work permit application to the IRCC. In 2014, post arrival in Whistler, the petitioner faced difficulties in setting up her business whereafter she requested for a change in the business location from Whistler to Chilliwack in B.C. A new performance agreement was concluded in 2015, on the basis of which PNP issued a nomination certificate with a validity of 6 months and subsequently in 2017, application for permanent residency was filed to the Immigration, Refugees, Citizenship Canada (IRCC). During this period, petitioner had to sell her business on account of health complications which made it difficult for her to handle the business. The closure details were communicated to the IRCC and not to the PNP. Subsequently, on being interviewed by the PNP regarding the events leading up to the business closure, the authority withdrew petitioner’s Nomination Certificate.

The present application had been filed for a judicial review of PNP’s decision on account of lack of reasonableness, jurisdictional overlap and procedural irregularities rendering it to be reviewed based on a ‘standard of correctness’. The presumption of reasonableness of administrative decisions can be rebutted where the legislature has expressly provided for a review standard through legislative provision, existence of a statutory right of appeal, application of standard of correctness for addressing constitutional questions, general questions of law and questions regarding jurisdictional boundaries between two or more bodies.

In the present case, there was no statutory right of appeal, standard for review or fundamental questions impacting legal system to inhibit the administration of justice. Thus, the presumption of reasonableness has not been efficiently rebutted by the petitioner. Relying on the decision of the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov (2019 SCC 65) and Bell Canada v. Canada (Attorney general) [2019 SCC 66] the court held that the decision of the immigration authority is well-reasoned and justified in the light of facts and law relevant to the case. The scheme of BC PNP and the 2015 Performance agreement allows PNP to lay down considerations for nomination of candidates and also withdrawal of nomination where the nominee fails to fulfil those considerations. By selling her business petitioner no longer met the entrepreneur nomination qualification and thus PNP was within their authority to withdraw her nomination.

On the issue of procedural fairness, the court held that the petitioner was provided requisite information on the qualifications to be fulfilled for nomination and the consequences of non-compliance, in the nomination certificate provided by the PNP. Further, the issues in the application were communicated to the petitioner and opportunity was provided for addressing any concerns prior to withdrawal of the nomination. Thus, the decision of PNP was held to be rational and justified in the light of relevant legal and factual constraints.