Date: 20050615
Docket: IMM-5469-04
Citation: 2005 FC 856
BETWEEN:
HARJIT SINGH SAHOTA, KULJIT KAUR SAHOTA,
LAKHWINDER SINGH SAHOTA, SUKHWINDER SINGH SAHOTA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] Mr. Sahota applied for permanent residence in Canada in the self-employed persons class. He has been a successful farmer in India for over 30 years.
[2] The designated Visa Officer refused his application on the grounds that he did not fall within the meaning of a "self-employed person" as set out in the Regulations:
...because you have been unable to demonstrate to my satisfaction that you have the relevant experience, appropriate skills or ability to purchase and manage a farm in Canada which would make a significant contribution to the Canadian economy. You have limited knowledge of the Canadian farming practices and have no idea of the cost and specific location of the farm lands in Canada. Given your weakness in both Canadian official languages and the different techniques in farming between Canada and your country, I am not satisfied that you can successfully manage a farm in Canada.
[3] This is the judicial review of that decision.
[4] To put the application in context, section 12 of the Immigration and Refugee Protection Act deals with the selection of permanent residents based on family reunification, economic immigration and refugees. A foreign national may be selected as a member of the economic class "on their ability to become economically established in Canada".
[5] Turning next to the Immigration and Refugee Protection Regulations, there are two broad divisions within the economic class: skilled workers and business immigrants. Business immigrants comprise investors, entrepreneurs, and self-employed persons. Mr. Sahota would fall into the latter. There are regulations dealing with business immigrants selected by a province. Those regulations do not apply to Mr. Sahota. Section 88 of the Regulations which deals with all business immigrants, defines a self-employed person (travailleur autonome) as:
|
"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_ » 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.
|
[6] "Specified economic activities" in respect of a self-employed person include "the purchase and management of a farm".
[7] Relevant experience, when it comes to farming, means:
|
"relevant experience", in respect of
(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
...
(iii) in respect of the purchase and management of a farm, two one-year periods of experience in the management of a farm;
|
« _expérience utile_ »
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 :
[...]
(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;
|
[8] Mr. Sahota submits that the Visa Officer erred in law in holding that he did not have relevant experience. It was submitted that the definition is clear. If in the five years before the application there were at least two one-year periods of experience in the management of a farm, the applicant is deemed to have relevant experience. I agree.
[9] However, what the Visa Officer said was that she was not satisfied he had the "relevant experience, appropriate skills or ability to purchase and manage a farm in Canada which would make a significant contribution to the Canadian economy". The definition of a "self-employed person" covers all these issues, and so no error was made in terms of definitions.
[10] The Visa Officer was not satisfied that Mr. Sahota had the intention and ability to be self-employed in Canada. Although he had what she deemed to be a comprehensive business plan, he did not know what it meant. The notes of interview indicate that he did not know what crops were suitable to be grown in Ontario, where he intended to locate, and was not aware of geography and climactic conditions. Furthermore, his prior experience had been in growing wheat and rice and he now intended to grow fruit and vegetables. His only experience in that regard was growing vegetables for his own consumption. There are parts of her letter decision, and notes, which are questionable. Although Mr. Sahota appeared to have sufficient assets, she was concerned that most of them were fixed assets, i.e. his farm in India which would have to be sold. She was also concerned that he had not previously visited Canada to assess the situation first-hand.
[11] However, even on a reasonableness simpliciter standard of review, it cannot be said that the overall decision was unreasonable. As Joyal J. said in Miranda v. Canada (Minister of Employment and Immigration), [1993] 63 F.T.R. 81:
...Although one may isolate one comment from the Board's decision and find some error therein, the error must nevertheless be material to the decision reached...
It is true that artful pleaders can find any number of errors when dealing with decisions of administrative tribunals...
[12] Certainly, the fact that Mr. Sahota had not previously visited Canada was not fatal to his application, and I do not read the Visa Officer's decision that way. (Cheng v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 45 (QL), Dawson J.)
[13] In Hao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 296 (QL), Reed J., particularly at paragraphs 25 and 26, held that it was not unreasonable for a visa officer to explore a business plan to assess the applicant's knowledge of the business environment and the cost of doing business. These questions are relevant to the assessment of the seriousness of the applicant's intentions and his ability to carry out those intentions. If the plan is not realistic or is excessively vague, he is unlikely to meet the requirements for an entrepreneur immigrant. I do not draw a distinction simply because Mr. Sahota proposes to be self-employed. He would still be a business immigrant.
[14] In Shehada v. Canada (Minister of Citizenship and Immigration), 2004 FC 11, [2004] F.C.J. No. 12 (QL), Pinard J., relying on earlier jurisprudence, noted that a lack of research with respect to the proposed venture could justify a finding that the plan was not viable. In that case, the applicant was given an opportunity to explain his business proposal, but was unable to do so. The same holds true here.
[15] For these reasons, the application for judicial review shall be dismissed. There is no question of general importance to certify.
"Sean Harrington"
Judge
Toronto, Ontario
June 15, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5469-04
STYLE OF CAUSE: HARJIT SINGH SAHOTA, KULJIT KAUR SAHOTA, LAKHWINDER SINGH SAHOTA, SUKHWINDER SINGH SAHOTA
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 14, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: JUNE 15, 2005
APPEARANCES:
Wennie Lee FOR APPLICANTS
Rhonda Marquis FOR RESPONDENT
SOLICITORS OF RECORD:
Lee and Company FOR APPLICANTS
Toronto, ON
John. H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Email this Content