IMM-2036-96
B E T W E E N:
CHAUDHARY
ABDUL QAYUM
Applicant
-
and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR ORDER
The applicant, a citizen
of Pakistan who has been residing in the United States since 1989, applied for
permanent residence under the entrepreneur category in July 1995 through the
Canadian consulate office in Buffalo, New York. His application was assessed
pursuant to sections 2 and 8 of the Immigration Regulations, SOR/78-172,
("Regulations").
The applicant intended to
establish a leather-clothing and accessories manufacturing facility in Canada.
The visa officer concluded that the applicant did not demonstrate that he had
the ability to establish a business in Canada which would make a significant
contribution to the economy of Canada. In particular, her conclusion was based
on her finding that the applicant had failed to produce financial statements
concerning his ongoing businesses in the United States. As a result, she determined
that she could not make an appropriate assessment concerning the amount of
income generated by legitimate business activity and concerning the applicant's
ability to establish a business operation in Canada. It is this decision of
the visa officer which is under judicial review.
The applicant has been a
resident of the United States since approximately 1989 when he began an import
and distribution business. Since 1993, he has been the sole owner of AAR
Trading International Corporation, a company marketing leather products and
customized T-shirts. He also has a 50% interest in Hussain & Rasheed
Trading Company, a leather manufacturing facility which has been operating in
Pakistan since July 1990.
The applicant submits that
the visa officer breached her duty to act fairly in the assessment of his
application through her failure: (a) to provide an opportunity to produce
supplementary documentary evidence in support of his application; (b) to
request from him business plans for the establishment of a business in Canada;
and (c) to make an appropriate assessment of the information made available to
her.
The visa officer was
required to determine whether the applicant "... has the ability to
establish, purchase or make a substantial investment in a business ..."
venture in Canada within the meaning of "entrepreneur" as defined in
subsection 2(1) of the Regulations. The Court of Appeal recently
confirmed in Chiu Chee To v. Canada (Minister of Citizenship and
Immigration), [1996] F.C.J. No. 696 (A-172-93, May 22, 1996), that the
appropriate scope of review in this type of case is the one enunciated in Maple
Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R.
2 at 7-8:
It is, as well, a clearly-established rule that the courts should not
interfere with the exercise of a discretion by a statutory authority merely
because the court might have exercised the discretion in a different manner had
it been charged with that responsibility. Where the statutory discretion has
been exercised in good faith and, where required, in accordance with the
principles of natural justice, and where reliance has not been placed upon
considerations irrelevant or extraneous to the statutory purpose, the courts
should not interfere.
In Hajariwala v. Canada
(Minister of Employment and Immigration), [1989] 2 F.C. 79, 6 Imm. L.R.
(2d) 222 (F.C.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.
At best, the information
disclosed by the applicant to the visa officer was incomplete. His attempt to
introduce supplementary evidence with his affidavit in support of this
application for judicial review can be of no assistance. This Court cannot
consider evidence not available to the decision-maker. (See, for example, Lemeicha
et al. v. Minister of Employment and Immigration (1993), 72 F.T.R.
49 at 51.) On the basis of the documents she received from the applicant, the
visa officer concluded that he had failed to establish the necessary ability to
set up a business venture in Canada in accordance with the criteria of the Regulations.
She had no duty to pursue the matter further.
For these reasons, I can
find no reviewable error in the decision reached by the visa officer. The
application for judicial review will be dismissed. Both counsel agreed that
this was not a matter for the certification of a serious question of general
importance pursuant to section 83 of the Immigration Act.
"Allan
Lutfy"
Judge
Ottawa, Ontario
May 9, 1997
Email this Content