Docket: IMM-793-16
Citation:
2017 FC 16
Ottawa, Ontario, January 5, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
|
BETWEEN:
|
|
ELIRAN
MORDECHAI ELIYAHU LAZAR
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
Mr. Eliran Mordechai Eliyahu Lazar [the
applicant or Mr. Lazar] is a citizen of Israel. In May 2014, he applied for
permanent residence from within Canada under the Canadian Experience Class
[CEC]. In support of his application, Mr. Lazar indicated that he was a senior
manager with Gaya Cosmetic Industries Inc. [Gaya].
[2]
In January 2016, Citizenship and Immigration
Canada requested Mr. Lazar provide information relating to Gaya’s business
licence, its shareholder breakdown and its organizational chart. The
information was provided and, approximately one month later, his application
was refused. The refusal letter noted Mr. Lazar’s ownership of Gaya’s shares
and that periods of self-employment are not eligible for calculating a period
of work experience under the CEC. The Immigration Officer [Officer] determined
that Mr. Lazar was self-employed and therefore did not meet the requirements of
the CEC program. Mr. Lazar now seeks judicial review of the Officer’s refusal
decision. He submits that the Officer ignored evidence, rendered an
unreasonable finding and breached the principles of procedural fairness. I disagree.
[3]
The Officer reasonably addressed the evidence
and the refusal was an acceptable outcome in light of the facts and the law. Similarly,
I am not convinced that there was any breach of the duty of procedural
fairness. For the reasons that follow, the application is dismissed.
II.
Background
A.
The Application
[4]
In advancing his application under the CEC, Mr.
Lazar indicated that he had the required work experience as a Senior Manager as
classified under the National Occupational Classification (Code 0016).
[5]
In support of his declared work experience, he
indicated that he had been working in Canada since April 2012 and included two
work permits covering the periods of April 2012 to April 2013 and July 2013 to
August 2015. The permits identified Gaya as the employer. He also included tax
related documents and an employment letter confirming Gaya as his employer,
setting out his hours of work and annual salary inclusive of bonuses. In
completing the application, Mr. Lazar responded “no”
to the question asking if he was self-employed.
[6]
In response to a request to forward additional
documentation Mr. Lazar provided the Articles of Incorporation for Gaya, the Shareholders’
Register and documentation identifying current directors and officers of Gaya.
This information disclosed that Mr. Lazar was the President of Gaya and owner
of ninety percent of Gaya’s shares.
B.
The Decision
[7]
In rendering the refusal decision, the Officer
noted that, pursuant to section 87.1 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [IRPR], applicants are assessed
against the established experience criteria on a pass/fail basis.
[8]
The Officer noted Mr. Lazar’s declared
experience as a Senior Manager with Gaya and also noted that he was a ninety
percent owner of the company. The Officer then noted that “any period of self-employment or unauthorized work shall not
be included in calculating a period of work experience” in accordance
with subsection 87.1(3)(b) of the IRPR. The Officer concluded that Mr. Lazar
was self-employed and as such, did not meet the requirements of the CEC
program. The application was refused.
III.
Standard of Review
[9]
The Officer’s determination that Mr. Lazar was
self-employed and did not possess the requisite skilled work experience under
the CEC is a question of mixed fact and law to be reviewed on a reasonableness
standard (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] at paras
51 and 53 and Parssian v Canada (Minister of Citizenship and Immigration),
2016 FC 304 [Parssian] at para 17). When conducting a review on a
reasonableness standard, this Court may intervene only where the Officer’s
decision-making process was not justified, transparent and intelligible and
where the decision is outside the range of “… possible,
acceptable outcomes which are defensible in respect of the facts and law.”
(Dunsmuir at para 47.)
[10]
On the issue of procedural fairness, the parties
agree that the standard of review is correctness (Canada (Citizenship and
Immigration) v Khosa, [2009] 1 S.C.R. 339 at para 43 and Parssian at
para 17).
IV.
Analysis
A.
Did the Officer Ignore Evidence?
[11]
Mr. Lazar argues that he provided significant
evidence in support of the application demonstrating that he was in an
employer/employee relationship with Gaya and that the evidence also
demonstrated that Gaya was not solely owned by him. Despite this, the Officer
relied on the Shareholders’ Register to conclude that Mr. Lazar was
self-employed. In reaching this conclusion, the Officer made no reference to other
highly relevant documentary evidence, including T4 slips and an employment
letter - documentary evidence that is expressly referred to in the Operations Manual
for CEC Applications [Operational Manual] as “… key
documentary evidence for the vast majority of CEC applicants …”. He
argues that the Officer also made no reference to his negative response to the
application form question regarding self-employment.
[12]
Mr. Lazar relies on Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration [1998] FCJ No 1425 [Cepeda-Gutierrez]
to argue that the Officer’s silence with respect to directly relevant and
contradictory evidence allows the Court to infer that the evidence was ignored
and, in turn, to conclude that the decision is unreasonable. I am not
convinced.
[13]
While Cepeda-Gutierrez stands for the
principle set out by Mr. Lazar, that principle is of little assistance in this
matter.
[14]
It is undisputed that the onus was on Mr. Lazar
to establish that he met the CEC criteria. The criteria include work experience
through employment by a third party. The Operational Manual Mr. Lazar makes
reference to in his written submissions sets out factors to be considered in
assessing whether an applicant is an employee or self-employed. The Operational
Manual recognizes that this assessment can often be difficult when examining
the employment of professionals and states that “… individuals
who hold substantial ownership and/or exercise management control of a business
for which they are also employed are generally considered to be self-employed.”
While, as noted above, the Operational Manual also notes that tax
documentation is key documentary evidence in respect of the employment
relationship in the vast majority of cases, the vast majority of cases does not
equate to all cases.
[15]
In the circumstances of this application, the
Officer concluded that Mr. Lazar’s ninety percent ownership in the company and
his role as President of Gaya was determinative of the employee/employer
question. In reaching this conclusion the Officer is presumed to have
considered all of the evidence before him/her. Having concluded that Mr.
Lazar’s substantial ownership and management control were determinative of the
question, the Officer was under no obligation to address the remaining
documentary evidence.
B.
Is the Decision Unreasonable?
[16]
Mr. Lazar argues that the Officer improperly
conflated ownership of shares and the question of self-employment. He argues
that a shareholder who is also employed by a corporation is an employee of that
corporation since it enjoys a separate legal status from its shareholders.
[17]
While a corporation is, in law, a separate and
distinct legal entity, the assessment of the question of self-employment under
the CEC is driven by factors relating to ownership and control of a business.
This is evident when one reviews the factors relating to an assessment of
self-employment set out in the Operational Manual. The Operational Manual draws
no distinction between businesses established as corporations, sole
proprietorships or partnerships. Rather, the Operational Manual speaks of businesses
generally and focuses on questions of ownership and control, not business
structure.
[18]
In this case, Mr. Lazar owns the vast majority
of the shares in Gaya and he holds the position of President. It was reasonably
open to the Officer to conclude, based on these undisputed facts, that Mr.
Lazar was self-employed for the purposes of assessing his application under the
CEC. The decision is not unreasonable.
C.
Was there a Breached of the Principles of
Procedural Fairness
[19]
Mr. Lazar argues that in light of the
significant evidence provided supporting his employment relationship with Gaya
and his statement in the application that he was not self-employed, the Officer
was obligated to allow him to address self-employment concerns prior to rendering
the decision. He further argues that the rejection of the evidence of an
employer/employee relationship implicitly called into question the credibility
of the evidence. He argues that the failure to provide an opportunity to
respond amounted to a breach of procedural fairness. Again I disagree.
[20]
The jurisprudence establishes that in the visa
context: (1) an applicant has the onus of providing sufficient evidence to
support the application; (2) the degree of procedural fairness owed to an
applicant is at the low end of the spectrum; (3) there is no obligation on an Officer
to notify an applicant of deficiencies in the application or supporting
documentation; and (4) there is no obligation on the Officer to provide the
applicant with an opportunity to address any concerns of the Officer when the
supporting documents are incomplete, unclear or insufficient to satisfy the Officer
that the applicant meets the requirements. (Ansari v Canada (Minister of
Citizenship and Immigration), 2013 FC 849 at para 23 referring to Hamza
v Canada (Minister of Citizenship and Immigration), 2013 FC 264).
[21]
Concerns relating to credibility, the accuracy
or the genuine nature of information submitted with an application often
require that an applicant be given an opportunity to address these concerns (Madadi
v Canada (Citizenship and Immigration), 2013 FC 716 at para 6 citing Perez
Enriquez v Canada (Citizenship and Immigration), 2012 FC 1091 at para 26).
However, this is not the situation in this case. The Officer had no concerns
with Mr. Lazar’s credibility or the genuine nature of the evidence provided.
Rather, the Officer simply came to the conclusion that the evidence provided supported
the conclusion that for immigration purposes, the applicant was self-employed based
on his substantial ownership and control of Gaya, his employer. Unlike the
situation in Li v Canada (Minister of Citizenship and Immigration), 2012
FC 484 upon which Mr. Lazar relies, there was no ambiguity arising out of the
evidence or the guidance provided. While Mr. Lazar does not agree with the decision,
that disagreement does not render the decision unreasonable nor trigger an
obligation to provide an opportunity to respond.
[22]
The determinative issue was not related to credibility
or concerns with the genuine nature of the information provided. There was no
breach of procedural fairness.
V.
Certified Question
[23]
Counsel for Mr. Lazar has proposed the following
question for certification:
Does being a majority shareholder in a
corporation automatically render an individual that works for that same
corporation self-employed for the purposes of Regulation 87.1(3)(b) of the Immigration
and Refugee Protection Regulations SOR/2002-227?
[24]
Mr. Lazar argues that the question is
dispositive of the appeal and transcends the interests of the parties as it
contemplates an issue of general importance. I am unable to agree. Mr. Lazar
has argued that the decision evidences that where a majority shareholder of a
corporation works for that corporation, an applicant will automatically be
determined to be self-employed. No such result is mandated by the legislation,
regulations or manuals placed before the Court on this application. The decision
in this case was based on an exercise of discretion by the Officer having
considered the evidence and reaching a conclusion that was reasonably available
on the evidence. The question posed is not dispositive of this application nor
does it raise an issue of general importance. I decline to certify the proposed
question.
VI.
Conclusion
[25]
The Officer’s refusal decision was a reasonably
available outcome. The application is dismissed.
Email this Content