202008.26
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Canada Startup Visa: How the courts decided SUV cases



In April 2013, Immigration, Refugees, Citizenship Canada (IRCC) adopted rules to manage business immigration applications under the Start-Up Visa Program (SUV) category. At first a pilot project, SUV became a permanent federal immigration program in 2018. Since its creation until 2019, almost 900 applications were submitted with a success rate approaching 80%[1].

A number of foreign entrepreneurs sought judicial review before the Canadian federal court of the IRCC's decision to refuse their SUV applications. Court decisions being published, their content give us an important insight into the decision-making process at the administrative stage. Of the seven decisions rendered by the federal court[2] between October 2017 and June 2020, two judicial review applications were granted by the court and the cases were sent back to IRCC for reconsideration.

Most refusals were rendered after an independent peer review panel had assessed the commitment certificate issued by the designated organizations. While not binding, some conclusions of the peer review panels are something shared by the immigration officers in their refusal decisions and are of great assistance for future SUV applicants.

The following are some of the issues raised by the peer review panels or the immigration officers during their examination of SUV applications:

 

Atypical service agreement between the designated organization and the applicant:

  • High fees compared to industry standard;
  • Similar business models supported by the same designated organization.

Substantial changes to the business plan after the issuance of the commitment certificate without informing IRCC of those changes.

Incomplete market study:

  • Weak competitive market analysis,
  • Irrational revenue projections;
  • Lack of concrete distribution / marketing strategy;
  • Lack of management or relevant experience by the team members.

Lack of evidence to support:

  • The ownership of the business idea’s underlying intellectual property or Canadian corporation.
  • Why the business idea had to be developed in Canada, instead of in the applicant’s home country.
  • The development of the business idea or progress since the submission of the permanent residence visa application.

One common thread of all these refusals is the determination that the applicants had primarily applied to SUV for the purpose of acquiring an immigration status, not for engaging in the business described in the commitment certificate.

These judgements reveal the important of being up-to-date on the lasted jurisprudential trends regarding the start-up program. They highlight the importance for the SUV applicant to be actively involved in the development of their business ideas, according the industry standards.

[1] IRCC Data source MBR (EDW) as of June 12, 2018.

[2] Sapojnikov v. Canada, IMM-4566-16 (2017), Kwan v. Canada, IMM-3100-18 (2019), Yang v. Canada, IMM-2622-18 (2019), Bui v. Canada, IMM-3188-18 (2019), Nguyen v. Canada, IMM-3668-18 (2019), Mourato Lopes v. Canada, IMM-5000-18 (2019), Le v. Canada, IMM-4805-19 (2020)