Shehada v. Canada (Minister of Citizenship and Immigration), 2004 FC 11

                                                                                                                                             Date: 20040108

                                                                                                                                 Docket: IMM-1922-02

                                                                                                                                      Citation: 2004 FC 11

Between:

                                                                      ALI SHEHADA

                                               SOAD IMAM EL-SAYED MOHAMED

                                               AHMED ALY AHMED ALY SHEHADA

                                                 GADA ALI AHMED ALI SHEHADA

                                               MOHAMED ALY AHMED SHEHADA

                                                                                                                                                      Applicants

                                                                              - and -

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

PINARD J.:

[1]         This is an application for judicial review of the decision of the Consul and Deputy Program Manager, Robert Romano (the "Officer") from the Canadian Consulate General in New York dated April 3, 2002, wherein the applicant's application for permanent residence in Canada was refused because the applicant did not qualify as an entrepreneur under subsection 2(1) and paragraph 8(1)(c) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations").

[2]         The applicant is a Palestinian national but comes from the United Arab Emirates ("UAE"). In March 2000, he submitted an application for permanent residence to the Canadian Consulate General in Buffalo, New York. The applicant indicated that his intended occupation in Canada was "entrepreneur". The applicant planned to establish an import-export business from Canada to the UAE, exporting food, ready-made clothes and veterinary medicine.

[3]         On March 26, 2002, the applicant was interviewed in New York in order to verify the information on his application, his qualifications as an entrepreneur, his personal suitability, and his abilities to establish a business in Canada. On the basis of the paper screening and the interview, the applicant was awarded only 53 points in the entrepreneur category.

[4]         The appropriate standard of review of an Officer's decision to refuse an application for permanent residence is reasonableness simpliciter (see Shabashkevich v. Canada (M.C.I.), [2003] F.C.J. No. 510 (T.D.) (QL) and Liu v. Canada (M.C.I.), [2001] F.C.J. No. 1125 (T.D.) (QL)).

[5]    The applicant argues that the Officer erred in requesting an undue amount of detail from the applicant. After having examined the facts, the evidence as well as the pertinent legislation surrounding this case, I feel the officer was entitled to examine the applicant's business history and business proposal as factors when considering whether he met the definition of an "entrepreneur".

[6]    In Cho v. Canada (M.C.I.), [2000] F.C.J. No. 808 (T.D.) (QL), Justice Blais clarifies the criteria considered under an entrepreneur application:

[28]    To be considered an entrepreneur, the applicant must satisfy the visa officer that he had both the intent and the ability to establish, purchase or make a substantial investment in a business. Intent can be shown by proving that the applicant prepared for his venture. Ability is often proven by past experience and sufficient funds.

[7]    In addition, Justice Layden-Stevenson recently confirmed that importing an element of profitability into the assessment of an applicant as an entrepreneur does not constitute a reviewable error (Talwar v. Canada (M.C.I.), [2002] F.C.J. No. 951 (T.D.) (QL)). Indeed, the Court has held that it is within the Officer's jurisdiction to ensure that a viable business venture is planned. As a result, a lack of research by the potential immigrant could forestall any finding of viability (Chiu v. Canada (M.C.I.), [1996] F.C.J. No. 1460 (T.D.) (QL)). In Saadat v. Canada (M.C.I.), [2001] F.C.J. No. 39 (T.D.) (QL), O'Keefe J. stated at paragraph 18 that:

. . . The definition of "entrepreneur" contained in the Regulations states that the applicant must intend to become involved in a business or commercial venture in Canada "that will make a significant contribution to the economy and whereby employment opportunities will be created or continued in Canada for one or more Canadian citizens or permanent residents". It seems to me that a business must be seen to be viable by the visa officer in order to determine whether the proposed business will make a contribution to the economy or create employment opportunities. The visa officer must have information about the proposed business in order to determine the viability. In order to meet the definition of entrepreneur, the applicant must have shown to the visa officer that his proposal would have made a significant contribution to the economy and create a certain number of employment opportunities. The visa officer did not find that the applicant had so persuaded her. This is one of the reasonable conclusions that the visa officer could have reached. . . .

[8]    The interviewer's CAIPS notes as well as her affidavit reveal that she asked general questions about the applicant's business plans in Canada. I do not find that the interviewer's questions went beyond what is reasonably required to determine whether the applicant meets the criteria of "entrepreneur". In this case, the Officer was unable to decide whether the applicant's business proposal would make an economic contribution to Canada because the applicant presented a vague business plan on the basis of little research. In addition, the interviewer provided the applicant with the opportunity to explain his business proposal during the interview, but he was unable to do so. Consequently, the Officer acted reasonably in dismissing the applicant's business plan as one which would qualify him for entry into Canada as an "entrepreneur" (Heer v. Canada (M.C.I.), [2001] F.C.J. No. 1853 (T.D.) (QL) and Treiguer v. Canada (M.C.I.), [2003] F.C.J. No. 38 (T.D.) (QL)).

[9]    Consequently, the application for judicial review is dismissed.

       JUDGE

OTTAWA, ONTARIO

January 8, 2004

                                   FEDERAL COURT

                    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                IMM-1922-02

STYLE OF CAUSE:                       ALI SHEHADA, SOAD IMAM EL-SAYED MOHAMED, AHMED ALY AHMED ALY SHEHADA, GADA ALI AHMED ALI SHEHADA, MOHAMED ALY AHMED SHEHADA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:              Toronto, Ontario

DATE OF HEARING:              December 11, 2003

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD

DATED:                          January 8, 2004

APPEARANCES:

Mr. Benjamin A. Kranc                  FOR THE APPLICANTS

Mr. Ian Hicks                                FOR THE RESPONDENT

SOLICITORS OF RECORD:

Kranc & Associates                          FOR THE APPLICANTS

Barristers & Solicitors

Toronto, Ontario

Morris Rosenberg                      FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario