Darvish v. Canada: Federal Court Upholds Strict Timing Requirements for Start-up Visa Applications

Reference: 2026 FC 982 (CanLII) | Read on CanLII

Background and Facts

Four co-founders of iSina Inc.—Ali Mohammad Darvish, Naser Mostofi, Maryam Khadem Abbakhshani, and Leila Zamani Alavijeh—applied for permanent residence under the Start-up Business Class (SUBC). Their designated entity, Spark Innovation Centre, issued an initial Commitment Certificate valid from July 5, 2021 to January 5, 2022.

Mr. Mostofi initially submitted his PR application in August 2021 through a representative. When he received no response, he resubmitted his application in March 2022. The critical issue: his March 2022 application was submitted after the initial Commitment Certificate had expired on January 5, 2022. Spark subsequently issued a second Commitment Certificate and Letter of Support dated March 8, 2022.

Two years later, in March 2024, a Visa Officer issued a Procedural Fairness Letter (PFL) noting that no valid commitment certificate less than six months old existed at the time of application. Despite Mr. Mostofi’s responses and Spark’s confirmations of the reissued certificate, the Officer ultimately refused his application, finding no evidence that Spark had sent the second certificate directly to IRCC Montreal’s email address. The other three applicants’ applications were subsequently refused because Mr. Mostofi, identified as an essential member, had been rejected.

Legal Issues

The applicants raised two primary issues on judicial review:

1. Whether the Officer’s refusals were unreasonable; and
2. Whether the Officer breached the duty of procedural fairness.

The parties agreed that the standard of review for reasonableness was that established in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, while procedural fairness was reviewed on a correctness standard.

Decision

Justice Go dismissed the application for judicial review entirely. The Court found that the Officer’s refusals were reasonable and that no breach of procedural fairness had occurred.

Key Reasons

Regulatory Framework is Clear and Time-Sensitive

Justice Go emphasized that subsection 98.01(2) of the Immigration and Refugee Protection Regulations explicitly requires that a commitment certificate be « less than six months old on the date on which their application for a permanent resident visa is made. » The Court noted that this requirement has been consistently upheld in recent jurisprudence, including Tan v Canada (Citizenship and Immigration), 2024 FC 1986, which established that « timing is everything » in SUBC applications.

Critically, the Court rejected the proposition that applicants can circumvent timing requirements by filing amended or reissued commitment certificates after submitting their PR applications. As stated in Tan, « there is nothing in the language of subsection 98.01(2) or 98.08(2) that would suggest that an applicant is entitled to side-step this timing requirement by filing an amended Commitment Certificate after submission of their application. »

No Established Practice Exists

The applicants argued that the IRCC had an « established practice » of accepting applications despite expired commitment certificates. Justice Go rejected this argument, finding that:

• The opinion of Spark’s CEO regarding IRCC practices could not constitute evidence of established practice;
• An email from the IRCC Director General containing case scenarios did not confirm a policy allowing applications beyond the validity period;
• The applicants’ own submissions to the Officer contradicted their current position—they had claimed the second certificate was valid, not that an established practice permitted expired certificates.

Burden on Applicants to Prove Receipt

Justice Go applied the principle established in Sayekan v Canada (Citizenship and Immigration), 2025 FC 97, that « where a document does not appear in the Certified Tribunal Record, the Court will presume that it was not before the decision maker unless there is evidence from the applicant establishing the contrary. A bare assertion is not enough. »

The Court found that Mr. Mostofi never provided proof that Spark sent the second Commitment Certificate directly to IRCC Montreal, as required by IRCC procedures. Spark’s letters acknowledged issuing the certificate but never confirmed its transmission to IRCC. This failure was fatal to the application.

Procedural Fairness Not Breached

The Court rejected all three procedural fairness arguments:

1. The regulatory requirements are sufficiently clear regardless of IRCC public-facing guidelines;
2. The timing of the Officer’s concerns (two years after submission) does not breach fairness when the applicant bears responsibility for ensuring effective receipt of documents;
3. No legitimate expectation existed because the IRCC made no clear, unambiguous representations about processing applications with expired certificates.

The Court distinguished Saeedy v Canada (Citizenship and Immigration), 2025 FC 354, noting that case involved contradictory IRCC guidance and prior engagement with the applicant—neither present here.

Practical Implications

This decision provides critical guidance for SUBC practitioners and applicants:

For Applicants: The six-month validity requirement is absolute and cannot be circumvented. If a commitment certificate expires before an application is submitted, applicants must file a new application with a fresh certificate. Reissued certificates do not retroactively validate late applications.

For Practitioners: Counsel must ensure clients understand that timing is non-negotiable. Applicants should submit PR applications well before certificate expiry dates. If circumstances change or applications are delayed, practitioners should advise clients to submit new applications rather than attempt to rely on reissued certificates.

For Designated Entities: The decision confirms that commitment certificates must be sent directly to IRCC Montreal’s designated email address. Designated entities should maintain clear records and confirmations of transmission, as the burden falls on applicants to prove receipt.

Regarding IRCC Practices: While the Court acknowledged that IRCC may revise its public instructions, such revisions do not create exemptions from regulatory requirements. Applicants cannot rely on outdated or ambiguous guidance to bypass statutory obligations.

This judgment reinforces that the SUBC program operates within a strict regulatory framework where procedural compliance is paramount. Applicants and their representatives must treat timing requirements with utmost seriousness.

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