Tafreshi v. Canada (Citizenship and Immigration)

Tafreshi v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2022-07-22
Neutral citation
2022 FC 1089
File numbers
IMM-2767-18
Decision Content
Date: 20220722
Docket: IMM-2767-18 and others
Citation: 2022 FC 1089
Ottawa, Ontario, July 22, 2022
PRESENT: The Hon Mr. Justice Henry S. Brown
BETWEEN:
(SEE SCHEDULE A FOR ALL APPLICATIONS CASE MANAGED WITH THESE EIGHT TEST CASES)
Docket: IMM-2767-18
SANAM NEZAMI TAFRESHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND BETWEEN:
Docket: IMM-148-20
ASGHAR HASHEMI SARACHEH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND BETWEEN:
Docket: IMM-5019-18
MEHRNEGAR HARIRFOROUSH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND BETWEEN:
Docket: IMM-5020-18
NAVID FARAHANI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND BETWEEN:
Docket: IMM-6473-18
ABDOLRASOUL DARYOUSH KARIMI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND BETWEEN:
Docket: IMM-1164-19
SAEID TAGHIZADEH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND BETWEEN:
Docket: IMM-3166-18
RAMIN MAZAHERI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND BETWEEN:
Docket: IMM-6476-18
NAHID HEIDARI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Procedural history
[1] These eight applications for judicial review are test cases concerning 107 decisions made by the Immigration, Refugees and Citizenship Canada’s [IRCC] Visa Section in Warsaw, Poland. Each decision refused an application made by an Iranian national for permanent resident status under the Self-Employed [SE] class. The 107 SE visas applications were in three SE categories: cultural activities, athletics and the purchase and management of a farm (for applicants before March 10, 2018). In each case, the Warsaw Visa Section was not satisfied the claimant met the definition of a “Self-employed person” per subsection 12(a) of Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and subsections 88(1) and 100(1) of the Immigration and Refugee Protection Regulations, SOR/2002-27 [IRPR].
[2] By Order of the Chief Justice, these matters have been case managed since the outset, initially in 2018 by Justice Boswell until September 2020, and thereafter by Associate Judge Aalto [CMJ]. The hearing took place over four days at Ottawa in June 2022.
[3] Leave has been granted in these eight test cases. Leave has not been granted in the remaining 102 cases in respect of which leave and judicial review are to be guided by the Court’s determination in these test cases.
[4] A great deal of new evidence was filed. The record before the Court comprises of 4,434 pages. It may be that much if not most of the new evidence in this case was not considered by this Court in judicial review applications concerning other Iranian SE applications. It appears some of the Minister’s evidence was filed in those cases, and it may be that some cases had some of the evidence filed by these Applicants. I was not asked to and make no assessment or Order in that regard.
[5] The determinative issue common to all eight test cases is the absence of adequate procedural fairness. Notably, the new evidence concerns new and different procedures put in place by the Warsaw visa post to handle Iranian SE applications transferred to it from IRCC’s Ankara visa post where they were previously processed. In addition, there is new evidence concerning background events and procedures for handling SE applications generally.
[6] Although there are a number of problematic procedural issues illustrated in these test cases, two principle changes in IRCC’s procedure underlie the allegations and my findings of procedural unfairness in these matters.
[7] The first principle change in procedure occurred in 2016 when IRCC purported to replaced its Operational Manual designed to guide visa officers charged with processing applications under the SE class. This Operational Manual is referred to as “Manual OP 8” and applied to all SE applications from all countries. While still on IRCC’s website as an Active manual, IRCC replaced Manual OP 8 with Program Delivery Instructions (or PDI as I will refer to it) in 2016.
[8] The second major change affecting the procedural rights of Iranian SE applicants took place on March 7, 2018. Before then, all SE applications from Iran were handled by IRCC visa officers in Ankara. However, due to Ankara having a very substantial backlog issue, IRCC transferred virtually all of Ankara’s Iranian SE inventory to IRCC’s visa post in Warsaw for processing. The transfer included all new Iranian SE applications filed thereafter. As discussed later, the transfer from Ankara to Warsaw entailed a significant and material reduction in procedural fairness for Iranian SE applicants. Therefore, and not surprisingly, the number of successful SE applications fell dramatically after the transfer from Ankara to Warsaw.
[9] I should say at once that the law does not require IRCC to provide a high degree of procedural fairness to visa applicants; indeed the Federal Court of Appeal has ruled the level of procedural fairness required is at the low end of the spectrum, see Canada (Minister of Citizenship and Immigration) v Patel, 2002 FCA 55 at para 10; Rezaei v Canada (Immigration, Refugees and Citizenship), 2020 FC 444 [per LeBlanc J as he then was] at para 11; Hamza v Canada (Citizenship and Immigration), 2013 FC 264 [per Bédard J] at para 23; Tollerene v Canada (Citizenship and Immigration), 2015 FC 538 [per Fothergill J] at para 15 [Tollerene]; Gur v Canada (Citizenship and Immigration), 2019 FC 1275 [per Roy J] at para 16 [Gur].
[10] That said, procedural fairness remained and remains a requirement in IRCC’s processing of these SE applications.
[11] I have concluded, mainly for these two reasons but for other reasons also, that the provision of procedural fairness owed to these eight Applicants did not meet the legal standard required. Therefore, judicial review will be granted and redetermination ordered in all eight, as set out below.
II. Standard of review and applicable law
A. Principles concerning procedural fairness
(1) Content and consequences of procedural fairness
[12] The principle case on nature of procedural fairness is the Supreme Court of Canada’s decision in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker]. Importantly for the case at bar, Baker recognizes the doctrine of legitimate expectations which may determine what procedures the duty of fairness requires in given circumstances. The doctrine of legitimate expectation states that if a claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of procedural fairness. Importantly, the circumstances to be considered will take into account the promises or regular practices of administrative decision-makers. It will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights: see Baker at para 26:
26 Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights: Old St. Boniface, supra, at p. 1204; Reference re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525, at p. 557. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness: Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Bendahmane v. Canada (Minister of Employment and Immigration), 1989 CanLII 5233 (FCA), [1989] 3 F.C. 16 (C.A.). …. This doctrine, as applied in Canada, is based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights.
[Emphasis added]
[13] Additionally, in determining what procedures the duty of fairness requires, the analysis should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, as in the cases at bar. This is set out in para 27 of Baker:
27 Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70. While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints: IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282, per Gonthier J.
[14] To the same effect is the Supreme Court’s subsequent decision in Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36. This judgment reiterates the doctrine of legitimate expectations. It holds that if a public authority has made representations about the procedure it will follow in making a particular decision, or if it has consistently adhered to certain procedural practices in the past in making such a decision, the scope of the duty of procedural fairness owed to the affected person will be broader than it otherwise would have been:
[94] The particular face of procedural fairness at issue in this appeal is the doctrine of legitimate expectations. This doctrine was given a strong foundation in Canadian administrative law in Baker, in which it was held to be a factor to be applied in determining what is required by the common law duty of fairness. If a public authority has made representations about the procedure it will follow in making a particular decision, or if it has consistently adhered to certain procedural practices in the past in making such a decision, the scope of the duty of procedural fairness owed to the affected person will be broader than it otherwise would have been. Likewise, if representations with respect to a substantive result have been made to an individual, the duty owed to him by the public authority in terms of the procedures it must follow before making a contrary decision will be more onerous.
[Emphasis added]
[15] Central to procedural fairness is that the claimant know the case to meet, see Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 56 per Rennie JA [Canadian Pacific]:
[56] No matter how much deference is accorded administrative tribunals in the exercise of their discretion to make procedural choices, the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond. It would be problematic if an a priori decision as to whether the standard of review is correctness or reasonableness generated a different answer to what is a singular question that is fundamental to the concept of justice – was the party given a right to be heard and the opportunity to know the case against them? Procedural fairness is not sacrificed on the altar of deference.
[Emphasis added]
[16] See also Alabi v Canada (Citizenship and Immigration), 2018 FC 1163 at paras 27:
[27] As Justice Rennie concluded in Canadian Pacific (at para 56), in assessing whether a process was fair, “the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond”. In the present case, the Applicant did not know the case he had to meet.
[Emphasis added]
[17] The jurisprudence of this Court confirms two additional principles which I accept.
[18] First, those whose applications are filed before a decision-maker institutes material changes in procedure are entitled to have notice of and be given an opportunity to refile or otherwise so as to comply with the new procedures (see Kandiah v Canada (Citizenship and Immigration), 2018 FC 1096 [per Walker J] at paras 25-27 [Kandiah]). This is particularly the case where the change may result in potentially “fatal” consequences (Popova v Canada (Citizenship and Immigration), 2018 FC 326 [per Diner J] at para 11 [Popova]).
[19] Second, failure by a decision maker to provide an applicant with notice of the case to meet constitutes a breach of procedural fairness likely requiring the matter to be sent back for proper redetermination (see Khadr v Canada (Attorney General), 2006 FC 727 [per Phelan J] at para 132 [Khadr]; Edison v Mnr, 2001 FCT 734 [per Blanchard J] at paras 37-39; Khandiah at paras 25 to 27).
[20] Popova v Canada (Citizenship and Immigration), 2018 FC 326 at para 11 [per Diner J]:
[11] However, despite the fact that the duty of fairness is relaxed in study permit cases, it nonetheless continues to exist. There are circumstances where a visa officer will be required to inform an applicant of concerns with an application, even where those concerns arise from the applicant’s own evidence (Rukmangathan v Canada (Citizenship and Immigration), 2004 FC 284 at paras 22-23, cited in Hassani at para 23). This is such a case. Given the conclusions of the 2016 Refusal, I am satisfied that Ms. Popova had no reason to believe that her study history would be fatal to her new application; she thus should have been given an opportunity to respond to the Officer’s concerns.
[21] Khadr v Canada (Attorney General), 2006 FC 727 at para 132 [per Phelan J]:
[132] The doctrine of legitimate expectation is a significant procedural protection to the public at large from arbitrary government action. It has as its goal to put the person, at least procedurally, in the same position as if the impugned decision or action had not occurred. The only way in which that can occur is to remit the matter back to the Passport Office to be dealt with by it in accordance with the Canadian Passport Order as it was when the passport application was submitted.
[22] Kandiah v Canada (Citizenship and Immigration), 2018 FC 1096 at paras 25-27 [per Walker J]:
[25] The fourth Baker factor is that of the legitimate expectation of the individual (Baker at para 26). The principle of legitimate expectation derives from the requirements of procedural fairness. If a public entity or official has, by its conduct, led an individual to expect that a process would be conducted in a certain manner, the Court will protect the individual’s expectation. …
[26] I find that the Applicant’s legitimate expectation that he would be interviewed was unfairly denied by the Respondent and the Applicant’s right to procedural fairness breached. From March 2010 to June 2016, the Applicant, his sponsors and his counsel reasonably assumed that the Applicant would be interviewed by the Officer prior to a decision regarding his application. They relied on the clear and repeated representations of CIC to this effect. The Applicant then received the Procedural Fairness Letter in October 2016 requesting updated submissions regarding his personal circumstances, current country conditions in Sri Lanka and any H&C considerations. The Procedural Fairness Letter contained no indication that the Applicant’s written submissions were requested in lieu of an interview. It did not state or suggest that CIC was changing the review process it had established and communicated to the Applicant. It may well be that the Officer genuinely assumed that this change was implicit in the Procedural Fairness Letter. To the Applicant, it was not.
[27] The Respondent submits that an administrative process can be changed as long as the change to the process is fair and is properly communicated. I agree with the Respondent. However, I find that insufficient notice of the change in process was given to the Applicant.
[Emphasis added]
[23] Edison v Mnr, 2001 FCT 734 at paras 37-39 [per Blanchard J]:
[37] Mr. Justice Evans in Apotex Inc., (supra at paragraph 23) underscored the public interest that is sought to be protected by the doctrine of legitimate expectation, namely, the protection of the individual from an abuse of power through the breach of an undertaking. The implied undertaking in the case at bar is the non-discriminatory application of procedural norms set out by published guidelines in the application of the fairness legislation.
[38] The applicants had a legitimate expectation, in the legal sense, that the procedural norms set out by the Minister in the published guidelines would be followed, specifically that a second impartial review be conducted independently of the original decision maker. It cannot be said that such a review was conducted on the facts before me in this case. It is in the failure of the respondent to follow his own published procedural guidelines that I find a breach of the duty of fairness owed to the applicants under the rules of natural justice and procedural fairness.
[39] I reiterate my earlier comments in these reasons that the fairness legislation is discretionary and it is not for this court to substitute its decision to that of the Minister. The procedural guidelines to be followed are also in the discretion of the Minister. However, once set, such guidelines must be adhered to at least in so far as to meet the legitimate expectation, of any applicant, created by the said procedural norms.
[Emphasis added]
(2) Standard of review for procedural fairness is correctness
[24] The foregoing outlines the content and likely consequences of procedural unfairness.
[25] Turning to the standard of review, issues of procedural fairness are reviewed on the correctness standard: Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, per Binnie J at para 43. That said, I note in Bergeron v Canada (Attorney General), 2015 FCA 160, per Stratas JA at para 69, the Federal Court of Appeal says a correctness review may need to take place in “a manner ‘respectful of the [decision-maker’s] choices’ with ‘a degree of deference’: Re: Sound v Fitness Industry Council of Canada, 2014 FCA 48, 455 N.R. 87 at paragraph 42.” See also Canadian Pacific per Rennie JA. In this connection I also note the Federal Court of Appeal’s recent decision holding judicial review of procedural fairness issues is conducted on the correctness standard: see Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 per de Montigny JA [Near and LeBlanc JJA concurring]:
[35] Neither Vavilov nor, for that matter, Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, have addressed the standard for determining whether the decision-maker complied with the duty of procedural fairness. In those circumstances, I prefer to rely on the long line of jurisprudence, both from the Supreme Court and from this Court, according to which the standard of review with respect to procedural fairness remains correctness.
[26] I also understand from the Supreme Court of Canada’s teaching in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 23 [Vavilov] that the standard of review for procedural fairness is correctness:
[23] Where a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decisions other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness.
[Emphasis added]
[27] In Dunsmuir v New Brunswick, 2008 SCC 9 at para 50 [Dunsmuir], the Supreme Court of Canada explains what is required of a court reviewing on the correctness standard of review:
[50] When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.
[Emphasis added]
III. Legislative framework for the self-employed persons class
[28] Subsection 12(2) of IRPA provides that a foreign national may be selected as a member of the economic class “on the basis of their ability to become economically established in Canada”:
Economic immigration
Immigration économique
12(2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.
12(2) La sélection des étrangers de la catégorie « immigration économique » se fait en fonction de leur capacité à réussir leur établissement économique au Canada.
[Emphasis added]
[Je souligne]
[29] Section 100 of IRPR prescribes the self-employed persons class as a subset of the economic class, intended for a particular type of business immigrant, namely those with the ability to become economically established in Canada and who are self-employed persons within the meaning of subsection 88(1) of the IRPR:
Members of the class
Qualité
100 (1) For the purposes of subsection 12(2) of the Act, the self-employed persons class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada and who are self-employed persons within the meaning of subsection 88(1).
100 (1) Pour l’application du paragraphe 12(2) de la Loi, la catégorie des travailleurs autonomes est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité à réussir leur établissement économique au Canada et qui sont des travailleurs autonomes au sens du paragraphe 88(1).
Minimal requirements
Exigences minimales
(2) If a foreign national who applies as a member of the self-employed persons class is not a self-employed person within the meaning of subsection 88(1), the application shall be refused and no further assessment is required.
(2) Si le demandeur au titre de la catégorie des travailleurs autonomes n’est pas un travailleur autonome au sens du paragraphe 88(1), l’agent met fin à l’examen de la demande et la rejette.
[Emphasis added]
[Je souligne]
[30] Subsection 88(1) of the IRPR defines a “self-employed person” as one who has relevant experience and has the intention and ability to be self-employed in Canada and to make a significant contribution to specified economic activities in Canada:
self-employed person means a foreign national who has relevant experience and has the intention and ability to be self-employed in Canada and to make a significant contribution to specified economic activities in Canada. (travailleur autonome)
travailleur autonome Étranger qui a l’expérience utile et qui a l’intention et est en mesure de créer son propre emploi au Canada et de contribuer de manière importante à des activités économiques déterminées au Canada. (self-employed person)
[Emphasis added]
[Je souligne]
[31] Subsection 88(1) of the IRPR then defines “relevant experience” and “specific economic activities” as two years of experience in the particular category under which they are applying, be it cultural activities, athletics or farming:
Relevant experience, in respect of
Expérience utile
(a) a self-employed person, other than a self-employed person selected by a province, means a minimum of two years of experience, during the period beginning five years before the date of application for a permanent resident visa and ending on the day a determination is made in respect of the application, consisting of
a) S’agissant d’un travailleur autonome autre qu’un travailleur autonome sélectionné par une province, s’entend de l’expérience d’une durée d’au moins deux ans au cours de la période commençant cinq ans avant la date où la demande de visa de résident permanent est faite et prenant fin à la date où il est statué sur celle-ci, composée:
(i) in respect of cultural activities,
(i) relativement à des activités culturelles:
(A) two one-year periods of experience in self-employment in cultural activities,
(A) soit de deux périodes d’un an d’expérience dans un travail autonome relatif à des activités culturelles,
(B) two one-year periods of experience in participation at a world class level in cultural activities, or
(B) soit de deux périodes d’un an d’expérience dans la participation à des activités culturelles à l’échelle internationale,
(C) a combination of a one-year period of experience described in clause (A) and a one-year period of experience described in clause (B),
(C) soit d’un an d’expérience au titre de la division (A) et d’un an d’expérience au titre de la division (B),
(ii) in respect of athletics,
(ii) relativement à des activités sportives:
(A) two one-year periods of experience in self-employment in athletics,
(A) soit de deux périodes d’un an d’expérience dans un travail autonome relatif à des activités sportives,
(B) two one-year periods of experience in participation at a world class level in athletics, or
(B) soit de deux périodes d’un an d’expérience dans la participation à des activités sportives à l’échelle internationale,
(C) a combination of a one-year period of experience described in clause (A) and a one-year period of experience described in clause (B), and
(C) soit d’un an d’expérience au titre de la division (A) et d’un an d’expérience au titre de la division (B),
(iii) in respect of the purchase and management of a farm, two one-year periods of experience in the management of a farm; and
(iii) relativement à l’achat et à la gestion d’une ferme, de deux périodes d’un an d’expérience dans la gestion d’une ferme;
…
…
specified economic activities, in respect of
activités économiques déterminées
(a) a self-employed person, other than a self-employed person selected by a province, means cultural activities, athletics or the purchase and management of a farm; and
a) S’agissant d’un travailleur autonome, autre qu’un travailleur autonome sélectionné par une province, s’entend, d’une part, des activités culturelles et sportives et, d’autre part, de l’achat et de la gestion d’une ferme;
(b) a self-employed person selected by a province, has the meaning provided by the laws of the province. (activités économiques déterminées)
b) s’agissant d’un travailleur autonome sélectionné par une province, s’entend au sens du droit provincial. (specified economic activities)
[Emphasis added]
[Je souligne]
[32] IRCC has provided guidance in terms of cultural activities and athletics (and farming) in two guidance documents prepared for visa officers, namely Manual OP 8 issued in 2008, and Program Delivery Instructions issued in 2016. These guidance documents will be discussed in more detail later but for present purposes each provides:
• Self-employed experience in cultural activities or athletics will capture those traditionally applying in this category, for example, music teachers, painters, illustrators, film makers, freelance journalists. Beyond that, the category is intended to capture those people who work behind the scenes as a self-employed person, for example, choreographers, set designers, coaches and trainers. If you want to apply under the self-employed program, check if your occupation can be considered self-employment. This is not a definitive or exhaustive list.
• Participation at a world-class level in cultural activities or athletics intends to capture performers. This describes those who perform in the arts, and in the world of sport. “World class” identifies persons who are known internationally. It also identifies persons who may not be known internationally but perform at the highest levels in their discipline.
[33] Moreover, per the Respondent’s affidavit evidence: “Cultural activities include jobs generally seen as part of Canada’s artistic and cultural fields. Examples include: authors and writers; creative and performing artists; musicians; painters; sculptors and other visual artists; technical support and other jobs in motion pictures; creative designers and craftspeople. The National Occupational Classification (NOC) lists these under Group 5 – Occupations in art, culture, creation and sport.”
[34] If an applicant is found to have the requisite experience, ability and intentions, they are assessed in order to determine whether they “will be able to become economically established in Canada” pursuant to subsection 102(1) of the IRPR. This assessment is based on points awarded per various selection criteria for factors, such as age, education, language, experience and adaptability pursuant to sections 102 to 108 of the IRPR.
[35] Alternatively, if an applicant is not found to have the experience, ability and intentions required of self-employed people, “the application shall be refused and no further assessment is required” pursuant to subsection 100(2) of the IRPR.
[36] As mentioned already, in addition to the statutory and regulatory provisions, IRCC issued two sets of guidelines to visa officers processing SE applications. The first, issued in 2008, is Manual OP 8. While still on IRCC’s website as an Active manual, IRCC set out to replace Manual OP 8 with Program Delivery Instructions [PDI] in 2016. I discuss each in detail in my Analysis.
IV. Evidence in these applications
[37] Both sides provided evidence in these proceedings. Two witnesses gave affidavit evidence and exhibits for the Applicants – Mr Alireza Parsai and Mr Ramin Asadi. Both are experienced immigration consultants duly certified by Immigration Consultants of Canada Regulatory Council [ICCRC]. Mr Parsai had experience in cases such as the test cases, having represented approximately 500 SE category applicants of Iranian descent. Mr Asadi was also very experienced in matters such as these test cases, having been retained by more than 60 Iranian SE class applicants living in Iran. Together they acted for some 560 Iranian applicants in the SE class. They recounted their experience in relation to such applicants, in respect of which they had personal knowledge. Neither were cross-examined.
[38] The Respondent Minister put forward the affidavit of Thomas Richter. Pursuant to subsection 6(1) of IRPA, Mr Richter is designated as an immigration officer by the Minister of Citizenship and Immigration for the purposes of issuing visas under IRPA and his duties include the assessment of visa applications for admission to Canada, including permanent residence applications. Notably, Mr Richter was in charge of managing IRCC’s decision to transfer responsibility for handling virtually all Iranian SE class applications from IRCC’s Ankara visa office to its Warsaw office. His title was “Migration Program Manager” at IRCC. Mr Richter was cross-examined.
[39] I accept the evidence of both the Applicants’ and Respondent’s witnesses under the recognized exceptions to the general rule that judicial review proceeds on the record before the decision-maker. I do so because and to the extent they provided evidence on issues of alleged procedural unfairness and general background in this case: see Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22; Connolly v Canada (Attorney General), 2014 FCA 294 at para 7; Bernard v Canada (Revenue Agency), 2015 FCA 263, at paras 13-28; Bell Canada v 7262591 Canada Ltd. (Gusto TV), 2016 FCA 123 at paras 7-11; Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 at para 74.
[40] In this connection, I rely on the Federal Court of Appeal’s decision in Bernard v Canada (Revenue Agency), 2015 FCA 263 per Stratas JA:
[20] The first recognized exception is the background information exception. Sometimes on judicial review parties will file an affidavit that contains summaries and background aimed at assisting the reviewing court in understanding the record before it. For example, where there is a large record consisting of many thousands of documents, it is permissible for a party to file an affidavit identifying, summarizing and highlighting, without argumentation, the documents that are key to the reviewing court’s understanding of the record.
[21] In Delios, above, I put it this way (at paragraph 45):
The “general background” exception applies to non-argumentative orienting statements that assist the reviewing court in understanding the history and nature of the case that was before the administrative decision-maker. In judicial reviews of complex administrative decisions where there is procedural and factual complexity and a record comprised of hundreds or thousands of documents, reviewing courts find it useful to receive an affidavit that briefly reviews in a neutral and uncontroversial way the procedures that took place below and the categories of evidence that the parties placed before the administrator. As long as the affidavit does not engage in spin or advocacy – that is the role of the memorandum of fact and law – it is admissible as an exception to the general rule.
…
[25] The third recognized exception concerns evidence relevant to an issue of natural justice, procedural fairness, improper purpose or fraud that could not have been placed before the administrative decision-maker and that does not interfere with the role of the administrative decision-maker as merits-decider: see Keeprite and Access Copyright, both above; see also Mr. Shredding Waste Management Ltd. v. New Brunswick (Minister of Environment and Local Government), 2004 NBCA 69, 274 N.B.R. (2d) 340 (improper purpose); St. John’s Transportation Commission v. Amalgamated Transit Union, Local 1662 (1998), 1998 CanLII 18670 (NL SC), 161 Nfld. & P.E.I.R. 199 (fraud). To illustrate this exception, suppose that after an administrative decision was made and the decision-maker has become functus a party discovers that the decision was prompted by a bribe. Also suppose that the party introduces into its notice of application the ground of the failure of natural justice resulting from the bribe. The evidence of the bribe is admissible by way of an affidavit filed with the reviewing court.
[26] I note parenthetically that if the evidence of natural justice, procedural fairness, improper purpose or fraud were available at the time of the administrative proceedings, the aggrieved party would have to object and adduce the evidence supporting the objection before the administrative decision-maker. Where the party could reasonably be taken to have had the capacity to object before the administrative decision-maker and does not do so, the objection cannot be made later on judicial review: Zündel v. Canada (Human Rights Commission), (2000), 2000 CanLII 16575 (FCA), 195 D.L.R. (4th) 399; 264 N.R. 174; In re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103 (C.A.).
[27] The third recognized exception is entirely consistent with the rationale behind the general rule and administrative law values more generally. The evidence in issue could not have been raised before the merits-decider and so in no way does it interfere with the role of the administrative decision-maker as merits-decider. It also facilitates this court’s ability to review the administrative decision-maker on a permissible ground of review (i.e., this Court’s task of applying rule of law standards).
[41] None of these witnesses were certified as experts. I accept the Applicants’ evidence on the volume of files they handled, and the results they obtained: this evidence was not seriously challenged and likely could be verified by the Respondent in any event. I caution myself because the Applicants’ affiants represented the applicants whose claims they refer to, but I do not doubt their file counts or the documents they submitted as exhibits. I also accept the evidence of the Respondent’s witness with the same caveats.
[42] In accepting their evidence, I have ignored expressions of opinion, spin, advocacy and other irrelevant or inadmissible content.
V. Analysis of procedural fairness
[43] I now turn to the several issues of procedural fairness raised in these applications. The first deals with IRCC’s decision to replace OP 8 with PDI and its impact. The second, and more important, concerns IRCC’s decision to transfer all Iranian SE applications then being processed by its Ankara visa post, to IRCC’s visa post in Warsaw for processing.
A. Replacing IRCC’s Manual OP 8 with Program Delivery Instructions on the Self-Employed Persons Class [PDI]
[44] Manual OP 8 is a set of guidelines prepared by IRCC for use by visa officers processing SE and other applications. It was put in place in 2008. It remained in force at least until 2016. The Respondent’s evidence is that effective August 2, 2016, IRCC replaced “section 11” of Manual OP 8 with IRCC’s Program Delivery Instructions for Self-Employed Persons Class [PDI]. After that date, IRCC’s evidence is that “Officers assessing applications made in the Self-Employed persons Class after August 2, 2016 only consult the PDI” (Richter affidavit para. 17).
[45] According to the Richter affidavit at para 15:
PDIs are manuals consulted by employees of IRCC and the Canada Border Services Agency in the exercise of their functions under the Immigration and Refugee Protection Act, the Immigration and Refugee Protection Regulations, the Citizenship Act, and the Citizenship Regulations. PDIs are available publicly.
[46] On the evidence before me, I have determined the change from Manual OP 8 to the PDI materially reduced procedural rights for SE applicants. I have concluded that IRCC’s longstanding and regular practice of using Manual OP 8 and IRCC’s consistent and regular adherence with Manual OP 8’s procedural practices created a legitimate expectation that IRCC would continue to assess Iranian SE application based on Manual OP 8 at least for some time after August, 2016, and come to this conclusion per Baker at para 26 and Agraira at para 94.
[47] I have also concluded in the circumstances of these cases that the change from Manual OP 8 to PDI deprived claimants of their ability to know the case to meet and to have a full and fair chance to respond, contrary to Canadian Pacific at para 56. The change in manuals also increased the substantive requirements for SE visa applicants. The effect made it more difficult to obtain SE visas.
(1) Preliminary observations
[48] I wish to make two preliminary observations about Manual OP 8 and its continuing relevance.
[49] First, notwithstanding Mr Richter’s evidence that “section 11” of Manual OP 8 was replaced effective August 2, 2016, I find IRCC replaced or at least intended to replace the entirety of Manual OP 8 with the PDI. I make this finding because of IRCC’s additional evidence that “Officers assessing applications made in the Self-E