Date: 20080114
Docket: IMM-2373-07
Citation: 2008 FC 25
BETWEEN:
IBTESSAM
NISSAB
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of the decision of K. Gebirrebbi (the “visa
officer”), who determined that the applicant did not qualify for a permanent
resident visa as an investor.
[2]
The
applicant is a Syrian doctor who applied to immigrate to Canada under the
investor category in 2005. She is employed as Chief Doctor and Supervisor of
the Obstetrics and Gynecology Department at Al Amal Hospital, and also works
part time in a private clinic as the sole manager and director. Her application
to come to Canada as an
investor was denied on April 15, 2007.
[3]
After
setting out the legislative framework of the investor category, the visa
officer determined that he was not satisfied that the applicant had the
required two one-year periods of experience in the management of a qualifying
business or two one-year periods of experience in the management of at least
five full-time job equivalents per year in a business. In particular:
. . . During your interview you indicated
that there are 6 employees working under your supervision at Amal Hospital. You also provided a letter
from the Social Security Administration showing that the hospital had a total
of 6 to 8 employees registered with the social security administration in the
past two years. However, you were unable to provide a satisfactory explanation
on how 6 out of the 8 registered hospital employees happen to work in your
department and under your supervision when there are 3 other departments in the
hospital.
[4]
The
investor class is defined in the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the “Regulations”), as follows:
|
88. (1) “business experience”, in respect of
(a)
an investor, other than an investor selected by a province, means a minimum
of two years of experience consisting of
(i)
two one-year periods of experience in the management of a qualifying business
and the control of a percentage of equity of the qualifying business during
the period beginning five years before the date of application for a
permanent resident visa and ending on the day a determination is made in
respect of the application,
(ii)
two one-year periods of experience in the management of at least five
full-time job equivalents per year in a business during the period beginning
five years before the date of application for a permanent resident visa and
ending on the day a determination is made in respect of the application, or
(iii)
a combination of a one-year period of experience described in subparagraph
(i) and a one-year period of experience described in subparagraph (ii);
[.
. .]
“investor”
means a foreign national
who
(a)
has business experience;
(b)
has a legally obtained net worth of at least $800,000; and
(c)
indicates in writing to an officer that they intend to make or have made an
investment.
|
88. (1) a) S’agissant
d’un investisseur, autre qu’un investisseur sélectionné par une province,
s’entend de l’expérience d’une durée d’au moins deux ans composée :
(i)
soit de deux périodes d’un an d’expérience dans la gestion d’une entreprise
admissible et le contrôle d’un pourcentage des capitaux propres de celle-ci
au cours de la période commençant cinq ans avant la date où la demande de
visa de résident permanent est faite et prenant fin à la date où il est
statué sur celle-ci,
(ii)
soit de deux périodes d’un an d’expérience dans la direction de personnes
exécutant au moins cinq équivalents d’emploi à temps plein par an dans une
entreprise au cours de la période commençant cinq ans avant la date où la
demande de visa de résident permanent est faite et prenant fin à la date où
il est statué sur celle-ci,
(iii)
soit d’un an d’expérience au titre du sous-alinéa (i) et d’un an d’expérience
au titre du sous-alinéa (ii);
[.
. .]
« investisseur »
Étranger qui, à
la fois :
a) a de l’expérience dans
l’exploitation d’une entreprise;
b) a un avoir net d’au moins
800 000 $ qu’il a obtenu licitement;
c) a indiqué par écrit à
l’agent qu’il a l’intention de faire ou a fait un placement.
|
[5]
The
fundamental issue that arises in this application is whether the visa officer erred
in determining that the applicant did not have the requisite business
experience.
[6]
Subsection
88(1) of the Regulations provides that, in order to be considered an investor,
an applicant must have business experience, which can consist of two one-year periods
of experience in the management of at least five full-time job equivalents in
the five years preceding the application. The visa officer who decides whether
an applicant meets this requirement is entitled to a high level of deference,
and these decisions should be reviewed on the standard of patent
unreasonableness (To
v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696
(C.A.) (QL)). The obligation is on the applicant to provide sufficient evidence
to satisfy the visa officer that he or she meets the statutory requirements
(Lu v. Canada (Minister of Citizenship and Immigration), 2006 FC
1025, [2006] F.C.J. No. 1289 (T.D.) (QL)).
[7]
In
this case, the visa officer specifically noted his concern with the evidence
provided by the applicant, and his dissatisfaction with the explanation she had
provided. This evidence and this explanation appear from the applicant’s own affidavit.
In my opinion, this case is distinguishable from Gupta v. Canada (Minister
of Citizenship and Immigration) (2000), 186 F.T.R. 232, cited by the
applicant, in which the Federal Court took issue with the visa officer’s
failure, on a visitor visa application, to consider the totality of the
evidence - in that case, the evidence of family and business ties in India. Here,
the visa officer essentially determined that the applicant’s claim, that she
supervised six employees in one department when three other departments had
between none and two employees, was not plausible. When the applicant failed to
provide additional evidence which would counteract this determination, the visa
officer decided that the applicant did not fall within the investor class. In
my view, this decision was not patently unreasonable.
[8]
For
all the above reasons, the application for judicial review is dismissed.
“Yvon
Pinard”
Ottawa,
Ontario
January
14, 2008
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2373-07
STYLE OF CAUSE: IBTESSAM NISSAB v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF
HEARING: Montréal, Quebec
DATE OF
HEARING: December
6, 2007
REASONS FOR JUDGMENT: Pinard J.
DATED: January 14, 2008
APPEARANCES:
Me Styliani
Markaki FOR THE APPLICANT
Me Evan Liosis FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
Styliani Markaki FOR
THE APPLICANT
Montréal, Quebec
John H. Sims,
Q.C. FOR THE RESPONDENT
Deputy Attorney
General of Canada
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