Date: 20000821
Docket: IMM-1166-99
BETWEEN:
MUHAMMAD ALI DINA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks judicial review of, and an order setting aside, a decision made by a visa officer at the Canadian Embassy in Syria, dated January 22, 1999, which rejected the applicant's application for permanent residence in Canada in the entrepreneur category. Counsel for the applicant and for the respondent Minister were heard in Halifax on December 15, 1999, at which time decision was reserved.
The Background
[2] The applicant, Mr. Dina, is a citizen of Pakistan who is resident, with his family, in Kuwait. He applied for permanent residence in Canada under the entrepreneur class of immigrants. From his business plan, included in the certified record, it was the applicant's intention to establish an import/export trading company in Halifax, Nova Scotia, or possibly in Toronto. The applicant would export medical supplies and clothing and would import fruits and vegetables, canned and packaged food from the Far East or Middle East to be sold in a proposed supermarket specializing in ethnic food. His application details approximately twenty-two years' experience in this line of work. From 1992 until the time of his interview, on January 13, 1999, he was a forty-percent partner/shareholder in a company called "Five Pearls Establishment", and he was responsible for the overall management and operation of the company. According to his affidavit, the accounting for the Five Pearls Establishment is done by an independent accountant, in accord with the shareholder agreement between him and the person who holds the remaining sixty-percent of the shares of the company.
[3] Mr. Dina was in contact with the manager of business immigration for the Nova Scotia Economic Renewal Agency. A letter from the manager of that agency, dated July 16, 1997, a copy of which had been submitted with his application, includes the following:
| ... Overall, I am satisfied that your business experience and net worth position will allow you to establish an Import-Export Operation employing 2 persons initially. I noted you have a B.Comm. Most recently, since 1992, you are 40% partner and Import/Export Manager of Five Pearls Establishment. |
| The Province of Nova Scotia supports your proposal to establish a new business in the Province. You should be aware that our review at this stage is a preliminary review. |
The applicant's application for permanent residence also included a business plan and evidence of funds available to invest in a business in Canada.
[4] On January 13, 1998, the applicant attended at the Canadian Embassy in Damascus, Syria for an interview with the visa officer. By his affidavit, the applicant states that he brought with him relevant documents, including documents pertaining to his research on business in Canada and his shareholders' agreement for Five Pearls Establishment. He further states that he offered the documents to the visa officer and she replied that she had all the information she needed. The visa officer, in her affidavit, states that she informed the applicant that she did not need any duplicates of documents already on file. She further says that she did not say or do anything to prevent the applicant from producing additional documents.
[5] His application detailed contacts he had made in Canada, including a law firm, an accounting firm, a bank, and a business real estate analyst.
[6] After the interview, by letter dated January 22, 1999, the applicant was informed that his application for permanent residence was refused. The refusal was explained in the following terms:
| I have now completed the assessment of your application. I regret to inform you that you do not qualify for immigration to Canada as an entrepreneur. |
| Section 2(1) of the Immigration Regulations, 1978, defines an entrepreneur as "an immigrant who intends to establish, purchase, or make a substantial investment 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, other than the entrepreneur and his/her dependents. The entrepreneur must also intend and have the ability to provide active and on-going participation in the management of the business or commercial venture." |
| Following a careful and sympathetic review of your file and of the information submitted at interview, I am of the opinion that you do not meet this definition of "entrepreneur". |
| Your work experience over the past 22 years is very narrow. You have worked as sales manager/ 40% owner of a small company in Kuwait which imports perishables from the Indian sub-continent and microfilm from the UK. You stated at interview that your work duties are doing customs clearance, preparing payroll and letters of credit. You stated that all accounting is done by private consultants. Your experience and knowledge of accounting and bookkeeping practices, as well as human resource matters, are extremely limited. |
| Your plans to establish an import-export company in Halifax or Toronto demonstrate very little flexibility or resourcefulness. You stated that you would like to export ready made doors and plastic goods from Canada to Kuwait, and import fruits and vegetables from the Indian sub-continent to Canada. However, you have done almost no research and have very little knowledge about opening or purchasing and managing such a business in Canada. Your lack of research and knowledge about Canadian business practices and competition further cast into doubt your "ability to establish, purchase, or make a substantial investment in a business or commercial venture in Canada that will make a significant contribution to the economy" and to provide "active and on-going participation in the management" of such a business. |
| You were advised of these issues at interview, but were unable to allay my concerns. |
[7] The visa officer's CAIPS notes and her affidavit record her concern regarding the applicant's business experience. The visa officer noted that the applicant did not produce evidence of the products traded by the Five Pearls Establishment, or of tax records. She recorded her conclusion at the interview that the applicant's business experience was "narrow" and his answers to her questions seemed to her to be very general. She concluded that the applicant had little knowledge of setting up a business in Canada and related topics, such as competition and labour markets. She further states that she inquired how the proposed business would make a significant contribution to the economy of Canada. The applicant responded that he would pay his taxes and increase business in Canada. The visa officer declares that she concluded that the applicant did not have the ability to open a business in Canada that would make a significant contribution to the Canadian economy.
The Regulatory Definition of "Entrepreneur"
[8] The definition of "entrepreneur" to be applied by the visa officer, and to be considered in this application is set out in subsection 2(1) of the Immigration Regulations, 1978,1 which reads:
| "entrepreneur" means an immigrant
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"entrepreneur" désigne un immigrant
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| (a) who intends and has the ability to establish, purchase or make a substantial investment 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, other than the entrepreneur and his dependants, and |
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| a) qui a l'intention et qui est en mesure d'établir ou d'acheter au Canada une entreprise ou un commerce, ou d'y investir une somme importante, de façon à contribuer de manière significative à la vie économique et à permettre à au moins un citoyen canadien ou résident permanent, à part l'entrepreneur et les personnes à sa charge, d'obtenir ou de conserver un emploi, et |
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| (b) who intends and has the ability to provide active and on-going participation in the management of the business or commercial venture; |
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| b) qui a l'intention et est en mesure de participer activement et régulièrement à la gestion de cette entreprise ou de ce commerce; |
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[9] The applicant urges that the visa officer erred in law (a) by failing to consider relevant evidence, (b) by importing irrelevant criteria into the definition of "entrepreneur", and (c) by failing to provide the applicant with an opportunity to respond to her concerns regarding his application, it is urged that the officer breached a duty of fairness owed to the applicant. Issues (a) and (b) are interrelated and can be dealt with by considering whether, in light of the evidence before her, the visa officer's conclusion was reasonable, that the applicant did not have the experience to establish and operate a business in accord with the definition above. On this basis, I deal with each of the alleged errors in turn.
Analysis
[10] As a preliminary matter, it is my opinion that the standard of review to be applied in relation to issues (a) and (b) above is reasonableness. In coming to this conclusion, I note that the Immigration Act contains no privative clause, the issue to be determined is one of mixed fact and law (whether the applicant, by his application and at the interview, met the statutory definition of entrepreneur), and the issue in this case affects only the individual and it is not polycentric in the sense of affecting many persons. The statutory decision-maker does not have significantly more expertise than the reviewing Court in determining whether, given the facts as found by the decision-maker, the applicant fits within the definition of entrepreneur. Yet, this is not a simple question of fact, but one of mixed fact and law, and in the circumstances of this case a measure of deference is owed to the visa officer's decision if it be reasonable. Thus the Court would only intervene if persuaded the decision was unreasonable.
[11] On the issue of alleged unfairness in the process followed by the officer, the standard is correctness. If the Court is persuaded that the process was unfair, it will readily intervene.
The reasonableness of the visa officer's conclusion
[12] It is my opinion that the visa officer's conclusion was reasonable in light of the evidence before her. The CAIPS notes include mention of his Bachelor of Commerce degree and his previous employment, two factors said by the applicant to have been ignored. The applicant's affidavit makes reference to other factors said to have been ignored, but there is no basis upon which to conclude that they were not considered. The visa officer is not required to discuss each and every factor considered, and in the absence of some evidence or well based inference that they were ignored, the Court assumes relevant factors were considered.
[13] In my opinion, the visa officer did not err by considering the applicant's business experience to determine whether or not he had the requisite ability to establish and maintain, as a going-concern, a business in Canada that would make a significant contribution to the Canadian economy. The conclusion reached, in my opinion, was not unreasonable. There was evidence before the officer upon which her conclusion could reasonably be based.
[14] The applicant argues that the visa officer was unreasonable in basing her decision upon the applicant's lack of accounting experience. With respect, I disagree that this was the basis of her decision. From my reading of the letter refusing the application, it is clear that the applicant's lack of research concerning business in Canada and lack of knowledge of the Canadian business environment were also factors. At the interview, the applicant's answers to questions on this topic were general and did not persuade the visa officer that he knew enough about opening and operating a successful business in Canada. Knowledge of business practices in Canada, as well as knowledge of the particular market one is proposing to enter are relevant considerations in considering whether an applicant fits within the definition of "entrepreneur" as set out in the Regulations. The applicant claims to have done some research into the establishment of a business in Canada and to have had some knowledge of the business environment in which he proposed to operate. It was the visa officer's opinion following the interview that this was insufficient to qualify the applicant as an entrepreneur under the Regulations. In my opinion, this was a reasonable conclusion. Even if the Court would have come to a different conclusion on the same facts, it will not interfere unless the decision is determined to be unreasonable on the evidence before the visa officer.
The alleged failure to provide an opportunity to respond to concerns regarding the application.
[15] It is my opinion that the principles of procedural fairness and natural justice were not violated by the visa officer in the circumstances of the interview at the Canadian Embassy in Damascus. The visa officer avers in her affidavit that the applicant was not precluded from presenting new documents at the interview. She further states that she expressed her concerns to the applicant regarding what she saw as shortcomings in his application. The applicant states in his affidavit that the visa officer said she had all the documentation required and did not want to see any additional information. It would appear that there was a misunderstanding between the applicant and the visa officer, but I do not think it constitutes a violation of the duty of fairness owed to the applicant. The CAIPS notes confirm that at the end of the interview the visa officer expressed her concerns about the applicant's perceived shortcomings. By doing this, the visa officer, in my opinion, gave the applicant an opportunity to present any documents he had brought to the interview, and to address her concerns. He did not do so.
[16] The applicant also states that he was not asked any detailed questions about business in Canada. Whether or not the questions were seen by the applicant as "detailed" is not at issue, however. From the visa officer's CAIPS notes, questions regarding the applicant's knowledge of business in Canada were asked and the officer was not satisfied with the answers. It is incumbent upon the applicant to demonstrate to the visa officer in such a situation that he qualifies under the definition of entrepreneur. In my opinion, the applicant was given such an opportunity to do so. In the circumstances, I am not persuaded that the officer breached her duty of fairness to the applicant.
Conclusion
[17] In my opinion, the decision of the visa officer that the applicant did not fit the definition of entrepreneur, as that term is defined in the Immigration Regulations, 1978, was not unreasonable and it was based on evidence that was before her, including her assessment of the applicant at his interview. In addition, it is my conclusion that in the circumstances of this case the officer's duty to ensure procedural fairness was complied with.
[18] Thus, the application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
August 21, 2000
__________________
1 SOR/78-172.
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