Date: 20020506
Docket: IMM-5436-00
Neutral citation: 2002 FCT 514
BETWEEN:
ALEXANDRU BATKAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] This is an application for judicial review of a decision of a visa officer dated September 19, 2000, in which the applicant's application for permanent residence in Canada as a self-employed person was refused.
[2] There are two issues: 1) Did the visa officer err in refusing the applicant's application for permanent residence? and 2) Is the application out of time?
[3] The applicant, a Romanian citizen, applied for permanent residence in Canada as a self-employed person in 1995. Included in his application as dependents were the applicant's wife and son.
[4] The applicant was employed as a tailor in Romania from 1964 to 1990 and then was a self-employed tailor there from 1990 to 1998.
[5] The applicant was interviewed by a visa officer on June 28, 2000. At the interview the applicant indicated that he intended to open a tailoring business in Canada. He also submitted some letters which the respondent characterized as "informal job offers from people who would be interested in employing him." In fact one letter could be characterized as such and the other letter was an offer for sub-contract work.
[6] The applicant also indicated that he would need approximately $150,000 Cdn to establish his business. The information presented to the officer indicated that he did not have this amount of funds available to him. In particular the applicant indicated in his application that his net worth was $42,300 Cdn. The visa officer's refusal letter was dated August 31, 2000. She stated inter alia:
In my opinion you do not meet this definition of "self-employed person". You did not convince me that you have the intention to establish a business in Canada or to create a business opportunity for yourself, as you presented some non validated job offers from people who would be interested to employ you. You did not convince me neither that you have the ability to establish or purchase a business in Canada. According to your own notarized statement dated August, 2nd, 2000, you estimated your total asset around 70000 USD, whereas based on your declaration during your
interview at this office, you estimated needing 150000 CAD to start your project in Canada. Therefore lack of funding will not allow you to establish your business project in Canada. Furthermore, your project for Canada does not represent a significant contribution to the economy or the cultural or artistic life of Canada.
[7] By letter dated September 13, 2000, the applicant's consultant requested reconsideration of the decision.
[8] On September 19, 2000, the visa officer wrote to the consultant confirming that the applicant's case had been refused and would not be reconsidered. The letter stated:
Mr. Batkai's application was considered on its substantive merits and was refused. Mr. Batkai was provided with the decision containing the reasons for refusing his application for permanent residence in Canada by letter addressed to him on September 6, 2000, thereby fully concluding his application.
[9] Subsection 2(1) of the Immigration Regulations, 1978, defines self-employed immigrant as follows:
| "self-employed person" means an immigrant who intends and has the ability to establish or purchase a business in Canada that will create an employment opportunity for himself and will make a significant contribution to the economy or the cultural or artistic life of Canada;
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« travailleur autonome » s'entend d'un immigrant qui a l'intention et qui est en mesure d'établir ou d'acheter une entreprise au Canada, de façon à créer un emploi pour lui-même et à contribuer de manière significative à la vie économique, culturelle ou artistique du Canada.
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[10] The Immigration Manual with respect to processing entrepreneurs and self-employed immigrants states as follows:
A person's financial assets may also be a measure of intent and ability to do business in Canada. There is no minimum investment level for a self-employed person. The capital required depends on the nature of the business. The applicant
must have sufficient funds to create an employment opportunity for himself and maintain himself and his dependants. He must show you that he has been able to support himself and family through his talents and would be likely to continue to do so in Canada.
[11] The applicant submits that he has prior business experience as a self-employed tailor and also submitted a letter offering him sub-contract work. The applicant further submits that a large amount of capital is not required for a tailor to do sub-contract work and that there is no minimum level of investment for a self-employed person. Rather, the capital required depends on the nature of the business.
[12] The applicant is correct in stating that there is no minimum level of investment but in this case the applicant told the officer that he did not have the capital necessary to purchase or establish his proposed business in Canada. It is also open to the officer to consider whether the applicant truly intended to open his own business since in this case there was only one letter which might tend to support the applicant's position. The applicant also submitted that there was indication in the Tribunal record that the applicant had more than $42,300 Cdn or $70,000 U.S., but it is not up to the visa officer to review all the different places where it might show that the applicant has assets. Furthermore, the material referred to by the applicant is ambiguous at best and in my view there was nothing unreasonable in the visa officer's decision. It was the applicant who stated that he needed $150,000 to establish his business and yet provided evidence that he did not have this amount of capital.
[13] I also note that this application is out of time. The letter of refusal is dated August 31, 2000, but it appears to have been sent out September 6, 2000, and must have been received by September 13, 2000, when the consultant wrote the visa officer asking for reconsideration of the matter. There was no motion for an extension of time until one was made during the hearing before me, notwithstanding the fact that the applicant was aware of this problem of time by February 7, 2001, when the respondent raised it in his memorandum of fact and law. This application was commenced on October 17, 2000 and it is thus outside the time limit to apply for judicial review of the decision of September 6, 2000, dated August 31, 2000. In my view the delay in making the application for an extension of time is too substantial to grant such an extension. I am aware that had the motion been made in the application on October 17, 2000, it may very well have been granted, since the application was filed only a few days late. However, the additional time since the matter was raised by the respondent is too substantial to be made up for by any award of costs. This Court has held that "courtesy letters" written in response to requests for reconsideration are not decisions which can be challenged by way of judicial review. See: Krishnamurthy v. Canada (MCI) [2000] F.C.J. No. 1998 (T.D.), Brar v. Canada (MCI) [1997] F.C.J. No. 1527 (T.D.) and Dhaliwal v. M.C.I. [1995] F.C.J. No. 982. Accordingly, the applicant's application was made out of time.
[14] For the foregoing reasons, the application for judicial review is dismissed.
"W.P. McKeown"
J.F.C.C.
Toronto, Ontario
May 6, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5436-00
STYLE OF CAUSE: ALEXANDRU BATKAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, APRIL 29, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MCKEOWN J.
DATED: MONDAY, MAY 6, 2002
APPEARANCES BY: Mr. Irvin H. Sherman, Q.C.
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: Martinello & Associates
Barristers & Solicitors
255 Duncan Mill Road
North York, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020506
Docket: IMM-5436-00
BETWEEN:
ALEXANDRU BATKAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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