Sivalohanathan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1058

Date: 20010927

Docket: IMM-3345-00

Neutral citation: 2001 FCT 1058

Ottawa, Ontario, this 27th day of September, 2001

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

CHUPPIAH SIVALOHANATHAN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review of the decision of a visa officer dated May 29, 2000, wherein the applicant's application for permanent residence in Canada was refused.

[2]                 The applicant seeks an order quashing the above decision and an order in the nature of mandamus requiring the visa officer to reconsider his application in accordance with the principles of fairness and the provisions of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") and the Immigration Regulations, 1978, SOR/78-172 (the "Regulations").

Background Facts

[3]                 The applicant, Chuppiah Sivalohanathan, is a citizen of Sri Lanka who made an application for permanent residence in Canada as an entrepreneur. The applicant had been employed in Sri Lanka by the same company for over 18 years where he began as a clerk and progressed to manager of ocean freight. Thus, he intended to move to Canada to establish a freight forwarding company in Ontario.

[4]                 In order to facilitate his application for permanent residence and corresponding business plan, the applicant retained counsel in Canada in 1998. In the summer of 1999, counsel prepared and submitted the applicant's application under the entrepreneurial category. The application included a detailed business plan. Applicant's counsel submitted an updated business plan in support of the application in 2000. On May 11, 2000, the applicant was interviewed in Singapore by the visa officer.

[5]                 By decision dated May 29, 2000, which reads in part as follows, the applicant's application was refused:

You have failed to satisfy me that you meet this definition. Specifically, you have not satisfied me that you have the ability to establish, purchase or invest in a business in Canada and provide active and ongoing participation in its management. You were fully counselled of this decision and grounds upon which it was predicated at [sic] interview and allowed an opportunity to rebut this decision.

Since you do not meet the definition of "entrepreneur," you are a member of the class of persons who are inadmissible to Canada described in paragraph 19(2)(d) of the Immigration Act in that you do not comply with the requirements of the Immigration Act and the Immigration Regulations. Accordingly, I have refused your application. I have attached a copy of this paragraph for your reference.

The applicant now seeks review of this decision.

Issue

[6]                 Did the visa officer breach the duty of fairness owed to the applicant by not allowing the applicant to disabuse the concerns that the visa officer had about his application?

Relevant Legislation

[7]                 Subsection 2(1) of the Immigration Regulations, supra defines "entrepreneur" as follows:

Analysis and Decision

[8]                 The applicant indicated at the outset of the hearing that the sole issue to be determined was whether the visa officer breached the duty of procedural fairness owed to the applicant by failing to give him a meaningful opportunity to respond to the visa officer's concerns.

[9]                 The alleged breach of procedural fairness occurred when, at the end of the interview, the visa officer counselled the applicant and told the applicant that he did not believe that he satisfied the requirements of subsection 2(1) of the Regulations. The visa officer wrote as follows in the CAIPS notes:

AT CONCLUSION OF INTERVIEW PI COUNSELLED THAT ALTHOUGH HE APPEARED TO BE COMPETENT AND EXPERIENCED WITHIN THE ADMINISTRATIVE AND MANAGERIAL ASPECTS OF FREIGHT FORWARDING BY SEA, HIS OVERALL EXPERIENCE AND STATED PLANS FOR CANADA WERE INSUFFICIENT TO CONVINCE ME THAT HE HAD THE ABILITY TO ESTABLISH AS PER R.2.1. NO REBUTTAL QUESTIONS.

LMP - REFUSAL

[10]            In paragraph 9 of his affidavit, the visa officer stated:

At the conclusion of the interview I counselled the Applicant that his overall experience and stated plans for Canada were insufficient to convince me that he had the ability to establish, purchase or make a substantial investment in a business or commercial venture in Canada that would make a significant contribution to the economy and whereby employment opportunities would be created or continued in Canada for one or more Canadian citizens or permanent residents and that he had the ability to provide active and on going participation in the management of a business or commercial venture. The Applicant asked no questions nor provided any additional information by way of a rebuttal or to otherwise disabuse me of my conclusion.

[11]            The applicant has submitted that the decision in Muliadi v. Canada (Minister of Employment and Immigration) [1986] 2 F.C. 204 (F.C.A.) applies to the present fact situation. I have reviewed the fact situation in Muliadi, supra and I note that in Muliadi, supra, the visa officer obtained a negative assessment of the applicant's application from the Province of Ontario and did not disclose this negative assessment to the applicant. It is this negative assessment that Stone, J.A. was speaking about in his decision, not the visa officer's negative decision itself. That is not the situation in the present case. The visa officer in the present case told the applicant of his (the visa officer's concerns) about the applicant's application.

[12]            This Court has dealt with the obligations of a visa officer with respect to the duty of procedural fairness in cases such as the present case in Qayum v. Canada (Minister of Citizenship and Immigration) (May 9, 1997), Docket IMM-2036-96 (F.C.T.D.). At paragraphs 6 to 8, Lutfy J. (as he then was) stated:

In Hajariwala v. Canada (Minister of Employment & Immigration) (1988), [1989] 2 F.C. 79, 6 Imm. L.R. (2d) 222 (Fed. T.D.), Associate Chief Justice Jerome stated the visa officer need not request supplementary information (at page 83, F.C.):

It is clearly, therefore, the responsibility of the applicant to produce all relevant information which may assist his application. The extent to which immigration officers may wish to offer assistance, counselling or advice may be a matter of individual preference or even a matter of departmental policy from time to time, but it is not an obligation that is imposed upon the officers by the Act or the Regulations.

In my opinion, the applicant's submissions must fail. The applicant has the burden of establishing his right to enter Canada. In this case, his burden was to demonstrate his ability to establish a business in Canada, one which will make a significant contribution to the economy. In the view of the visa officer, he failed to do so. He provided no financial statements concerning his business operations in the United States and in Pakistan. More significantly, he did not produce any business plans for the establishment of his business in Canada other than a bald assertion of his intention to do so.

The visa officer's affidavit and personal notes confirm that she specifically requested the applicant's financial statements and tax returns pertaining to his businesses. She apprised the applicant of her concerns pertaining to the lack of supporting documents. In my opinion, the visa officer satisfied her duty to act fairly.

[13]            In the present case, the visa officer chose to tell the applicant at the end of the hearing that his experience and stated plans were insufficient to convince the visa officer that the applicant satisfied the requirements of Regulation 2(1). This was the time for the applicant to provide any further relevant information that would assist his claim if such information existed. I do not agree that it was too late for the applicant to provide this information, if it existed, to the visa officer.

[14]            I am of the view that the visa officer did not breach the duty of procedural fairness that was owed to the applicant. The application for judicial review is dismissed.

[15]            The parties have indicated that they do not have a serious question of general importance to submit pursuant to subsection 83(1) of the Immigration Act, supra.

ORDER

[16]            IT IS ORDERED that the application for judicial review is dismissed.

                                                                                    "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

September 27, 2001