Date: 20020508
Docket: IMM-3293-00
Neutral citation: 2002 FCT 529
Ottawa, Ontario, Wednesday the 8th day of May 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
YOUSEF YOUSEFIAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Mr. Yousefian brings this application for judicial review from the June 20, 1999 decision of a visa officer denying his application for permanent residence in Canada in the entrepreneur category.
[2] Two issues are raised. First, did the visa officer exceed his jurisdiction by requesting that funds be transferred to Canada prior to the issuance of an immigrant visa so that the refusal was a nullity? Second, did the visa officer err in refusing to approve the application for landing?
[3] Mr. Yousefian says that if the visa officer acted without jurisdiction, mandamus or declaratory relief compelling a proper exercise of the statutory duty should lie. If the officer acted within jurisdiction, Mr. Yousefian seeks an extension of time for the bringing of this application for judicial review.
THE FACTS
[4] Mr. Yousefian, a businessman from Iran, applied to immigrate to Canada in the entrepreneur category on June 19, 1997. He was interviewed by a visa officer on February 15, 1998. At the time there were restrictions on currency outflows from Iran. After the interview the decision was made to favorably process Mr. Yousefian's application, subject to being satisfied that Mr. Yousefian would be able to access money. By letter dated April 22, 1998, Mr. Yousefian was asked by the visa post to transfer $100,000 Canadian to Canada, in order to verify that he had sufficient funds to establish himself in Canada. The letter further indicated that if the funds were not transferred within four months of the date of the letter, "we will assume that you are no longer interested in immigrating to Canada and your application for permanent residence will be refused".
[5] On August 6, 1998, Mr. Yousefian sought and received a three-month extension for the transfer of his funds. Mr. Yousefian then made an arrangement with his brother, a Canadian citizen, to have him advance the sum of $100,000 in Canada in Mr. Yousefian's name, with Mr. Yousefian providing a mortgage on his real property in Iran as a guarantee of the advance. The visa officer, after being informed by Mr. Yousefian's counsel of this arrangement, indicated by letter dated February 17, 1999 that this would not be satisfactory, and gave Mr. Yousefian another four months to comply with the initial $100,000 transfer requirement. The visa officer indicated that the arrangement with the brother was not satisfactory because the request was that the funds be actually transferred, not that Mr. Yousefian incur debt, even if secured. This letter again stated that if the transfer of funds did not occur within four months of its date, the visa post would assume that Mr. Yousefian was no longer interested in immigrating to Canada.
[6] On June 18, 1999, the day after the four-month deadline expired, Mr. Yousefian's counsel wrote to the visa officer advising that Mr. Yousefian had purchased an investment in a coffee shop franchise in Canada, advising that Mr. Yousefian had made arrangements to transfer the money to Canada, and requesting that his file remain open. The letter was faxed on June 18, 1999 late in the day and did not reach the visa officer. It was later re-sent.
[7] By letter dated June 20, 1999, the visa officer refused Mr. Yousefian's application for permanent residence on the ground that $100,000 had not been transferred as requested. After receiving much correspondence from Mr. Yousefian's then counsel intimating the transfer of funds had in fact taken place before the deadline, the visa officer notified Mr. Yousefian by letter dated July 15, 1999 that a decision would be made on whether to re-open the file when all of the documents were received. By letter dated September 16, 1999, the visa post indicated that Mr. Yousefian would be given a final 15 days to provide the visa officer with proof that financial arrangements had been made before June 17, 1999. Mr. Yousefian then transferred to Canada $50,000 on September 30, 1999 and $50,000 on October 1, 1999, and provided proof of this to the visa officer on October 4, 1999.
[8] On October 28, 1999, Mr. Yousefian was advised that his file would remain closed.
THE VISA OFFICER'S DECISION
[9] In its entirety, the officer's refusal letter of June 20, 1999 was as follows:
This refers to your application for permanent residence in Canada.
A letter was sent to you on April 21, 1998 and Feb. 17[,] 1999 requesting that you transfer 100,000$ to Canada within a least four months if you wished to pursue your immigration application. In this letter, you were also informed that if you did not transfer this amount within this period, it would be assumed that you were no longer interested in pursuing your application and your application would be refused.
As you have not complied with the provisions of paragraph 9(3) of Canada's Immigration Act of 1976, you come within the inadmissible class of persons described in paragraph 19(2)(d) of the Act in that you have not fulfilled or complied with the provisions of the Act and the regulations. Hence, I must refuse your application.
In the future, if you wish to reapply, you will be required to submit a new application and pay a new processing fee. The new application would be assessed according to the Canadian Immigration Act and Regulations in force at the time that the new application was made.
RELEVANT LEGISLATIVE PROVISIONS
[10] The Immigration Act, R.S.C. 1985, c. I-2 ("Act") contains the following relevant provisions:
| 9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.
[...]
(2) An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing.
[...]
(3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
(4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
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9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée.
[...]
(2) Le cas du demandeur de visa d'immigrant est apprécié par l'agent des visas qui détermine si le demandeur et chacune des personnes à sa charge semblent répondre aux critères de l'établissement.
[...]
(3) Toute personne doit répondre franchement aux questions de l'agent des visas et produire toutes les pièces qu'exige celui-ci pour établir que son admission ne contreviendrait pas à la présente loi ni à ses règlements.
(4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements.
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[11] The Immigration Regulations, SOR/78-172 ("Regulations") in relevant part provide:
| 2(1) "entrepreneur" means an immigrant
(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
(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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2(1) « entrepreneur » désigne un immigrant
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
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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| 23.1 (1) Entrepreneurs and their dependants are prescribed as a class of immigrants in respect of which landing shall be granted subject to the condition that, within a period of not more than two years after the date of an entrepreneur's landing, the entrepreneur
(a) establishes, purchases or makes a substantial investment in a business or commercial venture in Canada so as to make a significant contribution to the economy and whereby employment opportunities in Canada are created or continued for one or more Canadian citizens or permanent residents, other than the entrepreneur and the entrepreneur's dependants;
(b) participates actively and on an on-going basis in the management of the business or commercial venture referred to in paragraph (a);
(c) furnishes, at the times and places specified by an immigration officer, evidence of efforts to comply with the terms and conditions imposed pursuant to paragraphs (a) and (b); and
(d) furnishes, at the time and place specified by an immigration officer, evidence of compliance with the terms and conditions imposed pursuant to paragraphs (a) and (b).
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23.1 (1) Les entrepreneurs et les personnes à leur charge constituent une catégorie réglementaire d'immigrants à l'égard desquels il est obligatoire d'imposer les conditions suivantes au droit d'établissement:
a) dans un délai d'au plus deux ans après la date à laquelle le droit d'établissement lui est accordé, l'entrepreneur établit ou achète au Canada une entreprise ou un commerce, ou y investit une somme importante, de façon à contribuer d'une manière significative à la vie économique et à permettre à au moins un citoyen canadien ou un résident permanent, à l'exclusion de lui-même et des personnes à sa charge, d'obtenir ou de conserver un emploi;
b) dans un délai d'au plus deux ans après la date à laquelle le droit d'établissement lui est accordé, l'entrepreneur participe activement et régulièrement à la gestion de l'entreprise ou du commerce visé à l'alinéa a);
c) dans un délai d'au plus deux ans après la date à laquelle le droit d'établissement lui est accordé, l'entrepreneur fournit, aux dates, heures et lieux indiqués par l'agent d'immigration, la preuve qu'il s'est efforcé de se conformer aux conditions imposées aux termes des alinéas a) et b);
d) dans un délai d'au plus deux ans après la date à laquelle le droit d'établissement lui est accordé, l'entrepreneur fournit, à la date, à l'heure et au lieu indiqués par l'agent d'immigration, la preuve qu'il s'est conformé aux conditions imposées aux termes des alinéas a) et b).
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ANALYSIS
(i) The Jurisdictional Issue
[12] On Mr. Yousefian's behalf it was argued that the visa officer took his jurisdiction to make the issuance of the visa conditional on a transfer of funds to Canada from the regulatory definition of "entrepreneur", but that such jurisdiction is not contained in that definition, nor in any of the provisions of the Act or Regulations. While regulations may be passed under the authority of paragraphs 114(1)(a), (a.4), or (a.5) of the Act requiring pre-visa fund transfers for investors, there are no similar provisions allowing that demand to be made of an applicant in the entrepreneur class. Instead, entrepreneurs are permitted two years upon landing to establish, purchase or make substantial investment in a business or commercial venture.
[13] It was also said on Mr. Yousefian's behalf that in the Guidelines for Business Class Applicants published under the Minister's authority, the difference between the investor and entrepreneur programs is made apparent. Investors are to transfer funds prior to visa issuance, while there is no reference to a pre-visa fund transfer for entrepreneurs.
[14] Notwithstanding these arguments, counsel for Mr. Yousefian has not persuaded me that the requirement to transfer funds in advance of the issuance of the visa overstepped the parameters of the enabling legislation.
[15] The visa officer was required by subsection 9(2) of the Act to determine whether Mr. Yousefian appeared to be a person who might be granted landing. Mr. Yousefian was obliged to demonstrate not just his intent, but also his ability, to make an investment in Canada.
[16] Given the visa officer's uncontradicted testimony regarding the circumstances in Iran, whereby currency restrictions severely limited the ability to which Iranian money could be converted and exchanged, and the very negative exchange rate, the requirement of an actual fund transfer seems to me to be permitted under the Act as a way by which a visa officer could be satisfied, on balance, that an applicant from Iran, or any other country with similar currency restrictions, satisfies the regulatory definition.
[17] Counsel for Mr. Yousefian was correct in pointing out that there is no reference in either the legislation or the immigration processing manuals to a requirement of pre-visa fund transfers for entrepreneurs. An entrepreneur is given two years upon entering Canada to establish his or her business. However, this does not alleviate the onus on an applicant to satisfy a visa officer, prior to the issuance of a visa, that he or she has the ability to establish a business.
[18] It follows and I have concluded that the visa officer acted within his authority in requesting the transfer of funds.
(ii) Did the visa officer otherwise err?
[19] Review of the officer's decision shows that Mr. Yousefian's application was not dismissed because the visa officer concluded that Mr. Yousefian lacked the intention or the ability to make an investment in Canada.
[20] Rather, the application was rejected because Mr. Yousefian was said to have failed to have complied with subsection 9(3) of the Act which requires an applicant to answer questions truthfully and to produce required documentation. However, there was no evidence before the visa officer of untruthfulness, and the obligation to produce documentation cannot, in my view, be said to encompass a demand to transfer funds so as to create a document which an officer can then demand production of.
[21] Instead, the officer concluded that the consequence of Mr. Yousefian's failure to transfer funds within the specified time was to make Mr. Yousefian inadmissible. However, the failure of an applicant to comply with the direction of a visa officer does not per se render an applicant inadmissible. See: Kang v. Canada (Minister of Employment and Immigration), [1981] 2 F.C. 807 (C.A.); Tseng v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 746 (T.D.); and Haljiti v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 500 (T.D.).
[22] The visa officer ought to have assessed the application to determine the ability and the intent of Mr. Yousefian to make the investment. By failing to assess the application against that relevant criteria the visa officer committed a reviewable error.
(iii) Should the time for the bringing of this application be extended?
[23] The underlying consideration on a motion to extend time is whether the extension is required in order to do justice between the parties. See: Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (C.A.).
[24] In the present case, the evidence satisfies me that Mr. Yousefian always intended to challenge this decision, that the Minister will not be prejudiced by the extension, and that Mr. Yousefian's application is a strong one which I would otherwise be prepared to grant. Some explanation for the delay in bringing the application lies in the subsequent correspondence which passed between the parties as they attempted to resolve matters. While importuning a decision-maker to reconsider a decision may not always be a satisfactory explanation for delay in commencing proceedings (see, for example: Chan v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1393 (T.D.), as noted by Justice Marceau in Grewal, supra, a strong case may counterbalance a less satisfactory explanation for delay. Here, Mr. Yousefian has a strong case. It is also a relevant factor, in my view, that since October 1, 1999 the sum of $100,000 belonging to Mr. Yousefian has remained in Canada while he awaits resolution of this matter. I am satisfied in these circumstances that the interests of justice are served by granting the requested extension.
CONCLUSION
[25] The application for judicial review will be allowed.
[26] On the basis of this manner of disposing of the application, and this result, counsel posed no question for certification.
ORDER
[27] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the visa officer dated June 20, 1999 is hereby set aside. The matter is remitted for redetermination by a different visa officer.
2. No question is certified.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3293-00
STYLE OF CAUSE: Yousef Yousefian and the Minister of Citizenship
and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 9, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: May 8, 2002
APPEARANCES:
Ms. Barbara Jackman FOR APPLICANT
Ms. Amina Riaz FOR RESPONDENT
SOLICITORS OF RECORD:
Jackman , Waldman & Associates FOR APPLICANT
Barristers and Solicitors
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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