Date: 20080429
Docket: IMM-3366-07
Citation: 2008 FC 550
BETWEEN:
DMITRY
DENISOV
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing on the 15th of April, 2008, at Toronto,
of an application for judicial review of a decision of a Counsellor (Immigration),
(the “Officer”) at the Canadian Embassy in Moscow, Russia, dated the 13th
of June, 2007, wherein the Officer determined that the Applicant did not meet
the requirements of the Immigration and Refugee Protection Act, and
related Regulations
for a permanent resident visa as an entrepreneur. The Officer wrote:
You do not come within
the meaning of entrepreneur because: you have not satisfied me that you have
business experience as a defined in the regulations because you did not
manage a qualifying business. As a result, you do not meet the
requirements of subsection 97(2) of the regulations.
[emphasis
added]
THE BACKGROUND
[2]
The
Applicant attests that he is a “entrepreneur” from Russia, is married
and he and his wife have one daughter. In 2005, he and his wife and daughter
applied for permanent residence in Canada, at the Canadian Consulate (sic) in Moscow in the
Business (Entrepreneur) immigrant category. He further attests that on the 4th
of February, 2005, an immigration file was opened in his and his family’s
immigration matter.
[3]
The
Applicant further attests:
At the time of the Visa
Officer’s decision on my application I had management and control of a percentage
of the equity in the following businesses:
|
Legal Name
|
Zodchiy Ltd.
|
Centrpolytech Ltd.
|
Kratos USA Inc.
|
|
Location
|
Togliatti, Russia
|
Moscow, Russia
|
Florida, USA
|
|
Equity
%
|
50%
|
37.5%
|
25%
|
|
Annual
Sales in 2005
(CND$)
|
718,641.00
|
1,462,172,04
|
192,102.70
(in 2004)
|
|
Annual
net income in 2005 (CND$)
|
106,114.68
|
129,548.16
|
1,733.59
(in 2004)
|
|
Employees in 2005
|
9
|
10
|
3
|
|
Net
assets at year end in 2005 (CND$)
|
308,576.52
|
725,538.24
|
125,666.33
(in 2004)
|
[4]
Over
the period of time leading to the decision under review, the Applicant provided
very substantial documentation relating to the three (3) businesses identified
in the foregoing table.
[5]
The
Applicant and his spouse were interviewed by the Officer on the 16th
of October, 2006. At the close of the interview, the Officer entered the
following paragraph into the CAIPS record relating to the Applicant’s
application:
After more than one hour
of interview, I am not satisfied he [the Applicant] meets the definition of an
entrepreneur. I am providing Applicant with no more than 60 days to submit the
required translations of his documents, while I review the thick docs
previously submitted.
Under date of the 29th of
January, 2007, the following entry appears in the CAIPS notes:
Thick docs of additional
documents reviewed. However, they do not address my concerns – Applicant, in
my opinion, is not involved in the management of the main company, and even if
he was, it is not a qualifying business under IRPA [the Act]. Photos
made after interview are not conclusive evidence that subject would be working
with [another applicant and co-shareholder] in the management of that business,
… .
I have no reason to
believe Applicant meets the definition of entrepreneur under IRPA. At best, he
is only registered by a friend for other purposes, but not for the management
of the friend’s business.
The decision under review followed almost
five (5) months later.
THE LEGISLATIVE SCHEME
[6]
The
legislative scheme in respect of the “economic class” of immigrants to Canada, including
“entrepreneurs”, is rather complex. The relevant provisions of the Act
and Regulations are set out in Annex 1 to these reasons.
THE ISSUES
[7]
In
the Memorandum of Argument filed on behalf of the Applicant, the following
issues are identified:
…
26. Did the Visa
Officer ignore relevant evidence, misconstrue the evidence before him and make
findings that were patently unreasonable so as to constitute a reviewable
error?
27. Did the Visa
Officer err in law in refusing the application, because he failed to take into
account the totality of the evidence, made unreasonable inference and
considered irrelevant and extraneous matters?
28. Did the Visa
Officer err by failing in his duty to make an administrative decision in a
procedurally fair manner?
29. Did the Visa
Officer err in awarding the Applicant no weight, in his assessment of the
Applicant’s ability to do business in Canada?
…
[8]
In
addition to the foregoing issues, as on all applications for judicial review
such as this, the issue of standard of review arises. In what follows, I will
deal first with the issue of standard of review, secondly with the issue of
procedural fairness and thirdly with the remaining three (3) issues identified
on behalf of the Applicant all of which, I am satisfied, are issues of the
weighing and evaluation of the evidence provided by the Applicant.
ANALYSIS
a) Standard
of Review
[9]
In
the aftermath of the decision of the Supreme Court of Canada in Dunsmuir v.
New Brunswick, my colleague Justice de Montigny
commented on the standard of review of decisions of visa officers, such as the
decision here under review, in Belkacem v. Canada (Minister of
Citizenship and Immigration).
Paragraphs [11] to [14] of his reasons are set out in full in Annex 2 to these
reasons. It is particularly noteworthy that Justice de Montigny endeavours to
rationalize the decision in Dunsmuir v. New Brunswick with this
Court’s obligation created by paragraph 18.1(4)(d) of the Federal Courts Act to
grant relief on an application for judicial review such as this where a federal
board, commission or other tribunal, here the Officer, based its decision on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it. I am satisfied that that statutory
obligation applies to findings of fact made by the Officer whose decision is
here under review. I am further satisfied that such findings of fact, when
applied against the statutory framework to determine whether or not an
individual such as the Applicant is an “entrepreneur”, are deserving of very
substantial deference from this Court.
[10]
Issues
of procedural fairness were not impacted by the Dunsmuir decision.
Failure to afford procedural fairness that is owed in the context of any
judicial review results in reviewable error.
b) Procedural
Fairness
[11]
The
interview by the Officer with the Applicant and his spouse was conducted with
the aid of an interpreter provided by the Canadian Embassy in Moscow. In the
affidavit of the Applicant filed on his behalf in this matter, the Applicant
attests:
During the interview, I
recognized and pointed out to the Visa Officer, numerous inaccuracies in the
interpreter’s translations of specialized industrial and legal terms. In fact,
written reasons for decision represented by Computer Assisted Immigration
Processing System entries (“CAIPS”), set out the Visa Officer’s
(mis)understanding of my answers, with respect to the re-organization of
Zodchiy Ltd.
The Applicant continues in his affidavit
with a significant wide range of examples of “inaccuracies” in the
interpretation provided at the interview.
[12]
First,
it must be pointed out that interpretation was provided at the interview
because the Applicant himself was uncomfortable in proceeding in English. That
being said, his affidavit filed on this application for judicial review is in
English and is without a certificate of translation. Secondly, the Applicant’s
assertion that he “recognized and pointed out to the Visa Officer, numerous
inaccuracies in the interpreter’s translations” is contradicted by the
affidavit of the Visa Officer filed on behalf of the Respondent. The Visa
Officer attested:
…
6. On November 16,
2006, I interviewed the Applicant, as well as the two business partners, as
identified in the Applicant’s supporting documents. As I indicated to the
Applicant, this interview was done to establish whether he met the definition
of “Entrepreneur”, as defined in paragraph 88 of the Immigration and Refugee
Protection Regulations, and which includes the necessary Business and
management experience defined in the same paragraph. The three interviews for
the related applicants were held separately with the assistance of the same
Russian-English interpreter. This interpreter is the Program Assistant who had
reviewed this and the other two applications submitted by the Applicant’s
alleged business partners, and is well-experienced in both the review of
Entrepreneur class applications and translation for a variety of immigration
applications.
…
10. Despite having been
informed of my concerns, the Applicant never raised any concern or provided
comment regarding the translation provided by my Program Assistant. Should
such concerns be raised by an applicant during an interview, a note regarding
these concerns would be indicated in the CAIPS record.
…
[13]
Neither
the Applicant nor the Visa Officer was cross-examined on his affidavit. The
onus lies with an applicant for a permanent resident visa to Canada and on an
application for judicial review such as this and not on the Respondent.
[14]
In
Mohammadian v. Canada (Minister of
Citizenship and Immigration), Justice
Pelletier, then of the predecessor to this Court, wrote at paragraphs [29]:
In this case, I find
that the question of the quality of the interpretation should have been raised
before the CRDD because it was obvious to the applicant that there were
problems between him and the interpreter. His affidavit refers to the
difficulty he had understanding the interpreter and says that at times he did
not understand what was being said. This is sufficient to require him to speak
out at the time. His failure to do so then is fatal to his claim now. The
applicant’s assertion that he did not know he could object to the interpreter
is not credible given that the first hearing was adjourned because he and the
interpreter could not communicate. Clearly, the CRDD had shown it was alive to
the issue of interpretation. As a result, I do not have to engage in an
analysis as to whether all of the elements of Tran have been met since,
even if they have, the applicant’s failure to make a timely complaint in
circumstances where it was reasonable to expect him to do so means that relief
is not available to him.
[15]
By
analogy, the same might be said here.
[16]
In
the absence of cross-examination of the Visa Officer which might have cast
doubt on the Visa Officer’s sworn assertion that the Applicant never raised any
concern or provided comment regarding the translation or interpretation
provided at interview, the Applicant has simply failed to meet the burden on
him to establish his assertion that there was a breach of procedural fairness
in the conduct of the interview of him and his wife in their application for
permanent resident status in Canada.
c) The
determination by the Officer that the Applicant was not an “entrepreneur” as
defined because the Applicant did not satisfy him that he had “business
experience” because he did not manage a “qualifying business”.
[17]
To
qualify as a member of the entrepreneur class, by subsection 97(1) of the Regulations,
an applicant must be an entrepreneur within the meaning of subsection 88(1) of
the Regulations. “Entrepreneur” is defined in subsection 88(1) of the Regulations
as a foreign national who, among other things, has “business experience”. “Business
experience” is defined in the same subsection of the Regulations as
meaning a minimum of two years of experience consisting of two one-year periods
of experience in the management of a qualifying business. By subsection 97(2)
of the Regulations, if an individual such as the Applicant who makes an
application as a member of the entrepreneur class is not an entrepreneur within
the meaning of subsection 88(1) of the Regulations, his or her
application must be refused and no further assessment is required.
[18]
As
noted earlier in these reasons, the Applicant, in his affidavit filed on this
judicial review, attests that, at the time of the decision under review, he had
management and control of a percentage of the equity in three (3)
corporations. Although, by having management and control of a percentage
of the equity in three (3) corporations, the Applicant fulfilled one (1)
of the criteria to quality as an entrepreneur, he was required to fulfill all
of the criteria. Nowhere does he attest that he had management and control of
any of those businesses or, indeed, of any other business.
[19]
At
pages 40, 42 and 43 of the Tribunal Record before the Court, there appear
“Calculation[s] of Business Experience” for the Applicant in respect of each of
the businesses over which the Applicant attests that he had management and
control of a percentage of the equity. In each case, over a relevant five (5)
year period, the determination made in accordance with the Regulations
is that the Applicant did not have two (2) years of experience consisting of
two one-year periods of experience in the management of a qualifying business.
[20]
Given
the Applicant’s failure to attest to the contrary, I am satisfied that the
Officer’s determination that the Applicant did not come within the meaning of
“entrepreneur” because he had failed to satisfy the Officer that he had
“business experience” because he did not manage a “qualifying business”, was
entirely open to him. Whether any of the businesses at issue was or was not a
“qualifying business” is entirely irrelevant in the circumstances. The absence
of sufficient “experience” in management of any business is determinative.
CONCLUSION
[21]
For
the foregoing reasons, I am satisfied that subsection 97(2) of the Regulations
here applies. For ease of reference, that brief subsection is quoted again
here.
|
97.
…
|
97.
…
|
|
(2) If a foreign national who makes an application
as a member of the entrepreneur class is not an entrepreneur within the
meaning of subsection 88(1), the application shall be refused and no further
assessment is required.
|
(2) Si le demandeur au
titre de la catégorie des entrepreneurs n’est pas un entrepreneur au sens du
paragraphe 88(1), l’agent met fin à l’examen de la demande et la rejette.
|
In the result, this application for judicial
review will be dismissed.
CERTIFICATION OF A
QUESTION
[22]
At
the close of the hearing of this matter, counsel for the Respondent, when
consulted, indicated that she would not propose a question for certification.
Counsel for the Applicant urged that regard should be had for the determination
on an application for judicial review of a negative decision regarding landing
of a “business partner” of the Applicant which, at the time this matter was
heard, was under reserve. I have since had an opportunity to consult with the
judge who heard that other matter and I am assured that it will be determined
on a basis different from the basis on which I am determining this matter. In
the result, I am satisfied that any question that might be certified in respect
of that matter would not be determinative of this matter.
[23]
I
am satisfied that the determination of this matter turns on its unique facts.
Put another way, no serious question of general importance that would be
determinative on an appeal in this matter here arises. In the result, no
question will be certified.
“Frederick
E. Gibson”
Ottawa,
Ontario.
April
29, 2008
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