Docket: IMM-5908-13
Citation:
2014 FC 357
Vancouver, British Columbia, April 11, 2014
PRESENT: The Honourable Mr. Justice Harrington
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BETWEEN:
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JOHAN EFRAIN MEJIA MEJIA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Mr. Mejia Mejia sought permanent residence in Canada as a business immigrant, more particularly, as an investor. As such, he needed to
meet the requirements of section 88(1) of the Immigration Regulations.
On the interpretation of that regulation most favourable to Mr. Mejia Mejia he
needed a combination of one year of experience in the management of a
qualifying business with control of a percentage of equity therein and one-year
management of at least five full-time job equivalents. His application was
rejected, primarily because he only provided payroll records for employees
which covered an eight-month period.
[2]
Thereafter, he asked that the visa officer
reconsider. As part of that request, he provided payroll records which covered
several years. The visa officer refused to reconsider.
[3]
This is the judicial review of the original
decision, not the refusal to reconsider.
[4]
Section 88(1) defines the business experience of
an ‘investor’ as:
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(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);
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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);
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[5]
Although Mr. Mejia Mejia’s counsel made a
valiant effort to submit that the visa officer failed to consider the
combination of two one-year periods, I cannot share that viewpoint.
[6]
The Overseas Processing manual is clear that with
rare exceptions payroll records are essential. Mr. Mejia Mejia was obviously
aware of this as he did submit payroll records, but for a period less than
a year. His subsequent excuse was that it was very expensive to translate from
Spanish to English, although he promptly did so when he requested a
reconsideration.
[7]
Thus, the decision to reject his
application for permanent residence was not unreasonable. It certainly fits
within the considerations spelled out by the Supreme Court in Dunsmuir v New
Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9.
[8]
Matters become
complicated when it comes to the request for reconsideration. The record
clearly shows that Mr. Mejia Mejia claimed there were over 20 employees in the
company which he owned with his mother and sister, but that he only had direct
supervision over six. The visa officer wrote to Mr. Mejia Mejia simply to state
that he was refusing to reconsider. However, in his notes to file, he indicated
that there was an unexplained discrepancy from the fact that payroll records for
only six employees were submitted while there was a claim that Mr. Mejia Mejia
had control of over twenty. That appears to be a clear error on the face of the
record.
[9]
However, Mr. Mejia
Mejia did not seek leave to challenge that refusal. He takes the position that
it was not a decision. However, at the same time he has attempted to use the
material generated after the original refusal in his application record.
[10]
With very few
exceptions, judicial control is based on the record which was before the
original decision-maker. This case does not fall within one of those
exceptions.
[11]
What Mr. Mejia Mejia
should have done was to also seek judicial review of the refusal to reconsider.
[12]
A case very much on
point is the decision of the Federal Court of Appeal in Vidéotron Télécom
Limitée v Communications, Energy and Paperworkers Union of Canada, 2005 FCA
90, 345 NR 130, [2005] FCJ No 398. As Mr. Justice Décary pointed out at para 10
thereof, when a board dismisses an application for reconsideration because it refuses
to hear it on the merits, the initial decision remains intact and must be
directly challenged in court “regardless of what
the party chooses to do regarding the reconsideration decision”. In this particular case, the decision was to refuse, rather than
to reconsider the application on its merits. An application for leave and for
judicial review could have been brought to this court, but was not.
[13]
The parties agree that
there is no serious question of general importance which would support an
appeal to the Federal Court of Appeal.
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