Docket: IMM-861-17
Citation: 2018 FC 84
Ottawa, Ontario, January 26,
2018
PRESENT: The Honourable Mr. Justice Manson
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BETWEEN:
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RANDEEP SINGH
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUFEE AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] of a decision made by a visa officer (the “Officer”) refusing
the Applicant’s application for permanent residency in the economic class as a
self-employed person.
II.
Background
[2]
The Applicant is a citizen of India. He is
married and has one child. He leases land in India from his father and has
farmed there for several years.
[3]
In April 2014, the Applicant applied for
permanent residency in Canada as a member of the economic class. More
specifically, he applied as a self-employed person with plans to purchase and
manage a farm, per subsection 88(1) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [IRPA Regulations]. His submissions
included, among other things, financial information and a sworn statement from
his father.
[4]
On January 30, 2017, the Officer conducted an
interview of the Applicant in New Delhi. The interview lasted 20 minutes and
was conducted in Punjabi. The Officer’s interview notes contain the following
information:
- The Applicant said his uncle lived in
Brampton and was a real estate agent;
- He said he had farmed since 2003. He
cultivated 24 acres of land out of which 11 acres belonged to his father
and the rest he took on a lease. He cultivated wheat, rice and sugar beet;
- He said he planned to farm in Canada but
had not identified a location. His uncle suggested he could find a place
near Brampton;
- He said he would buy 8-10 acres. When
asked what that would cost, he responded that rates varied;
- When asked what was the average farm size
in Canada, he said that it varied between 10-70 acres;
- When asked what he would cultivate, he
said he was not sure and it depended on weather conditions and
profitability;
- When asked what grew in that region, he
said wheat, barley and soybean. He was not aware what varieties of wheat
were grown there or the wholesale price of those crops;
- He said he would invest $200,000 from the
sale of half his father’s property;
- He was not aware which part of Canada
Brampton is located in;
- He was not aware of the capital of
Canada;
- He was not aware of the provinces
bordering Ontario;
- When asked what the average temperature
of that region was in January, he said he was not aware but it was cool;
- When asked what expenditure was required
apart from the purchase of land, he said machinery. He didn’t know the
price but estimated it would cost $50,000 total;
- He said he had some knowledge of
computers and the internet. He was unable to state any websites he
referred to but said he had searched through Google;
- When asked what research he had done
about the economy, markets, climate and demography in Ontario, he said he
learned about climate and crops. When asked to be more specific, he said
the time they grew;
- When asked about distribution channels
available to farmers in Canada, he said items were sold to supermarkets,
farmers markets, etc.;
- When asked if any government agencies
helped farmers in that region, he said the Ontario Federation of
Agriculture provided seeds, pest control, etc. He did not know where its
office was located;
- When asked what research he had done
regarding the rate of return from his investment in farming, he said 2.5%
in the first year but could not explain how he arrived at that figure;
- He said that English and French were
spoken in Ontario. He said he could speak a little English but no French.
- When asked a question in English, he said
“sorry, I cannot understand you”; and
- The Officer explained her concerns and
gave him an opportunity to respond. He said his uncle would support him.
This did not satisfy the Officer’s concerns.
[5]
On January 31, 2017, the Officer rejected the
application. She found that the Applicant was not a “self-employed
person” as defined in subsection 88(1) of the IRPA Regulations.
[6]
In her written reasons, the Officer states she
was not satisfied that the Applicant had the intention and ability to purchase
a farm in Canada. She reasoned that the Applicant knew nothing about Canadian
farming practices, had not conducted any research into the proposed farming
enterprise, knew nothing about his intended destination and did not have the
financial resources to purchase a farm in Canada.
[7]
On February 24, 2017, the Applicant applied for
judicial review of the Officer’s decision.
[8]
At a hearing before this Court on October 25,
2017, both parties acknowledged that the Applicant’s business plan, police
clearances and supporting financial documents (the “Missing Documents”) were
not contained in the Certified Tribunal Record (the “CTR”). The matter was
adjourned to allow for further investigation by both parties.
[9]
On November 15, 2017, the Officer submitted an
affidavit stating that the Missing Documents were not contained in her file and
her notes made no mention of those documents being provided to her at the
interview. Furthermore, if the Applicant had presented those documents to her
at the interview, she would have recorded as such in her interview notes and
she would have reviewed those documents before rendering a decision.
[10]
On November 22, 2017, the Applicant submitted an
affidavit stating that he presented the Missing Documents to the Officer at the
interview, but she returned them to him without having read or asked questions
about them. He explained that he expended a significant amount of funds on the
business plan and that it would have had a determinative effect on his
application.
[11]
On January 9, 2018, the Applicant and the
Officer were cross-examined on their affidavits.
[12]
On January 22, 2018, the day before the hearing,
the Applicant submitted an affidavit of an immigration consultant, who stated
that his office had prepared a business plan for the Applicant in advance of
the interview.
III.
Preliminary Issues
[13]
The affidavits and cross-examinations of the
Officer and the Applicant are admissible. On judicial review, additional
evidence may be admitted to address issues of procedural fairness (Pompey v
Canada (Minister of Citizenship and Immigration), 2016 FC 862 at para 26).
[14]
The affidavit of the immigration consultant is
not properly before this Court and was not considered. It was submitted the day
before the hearing, without any opportunity for cross-examination, despite the
Applicant having had sufficient time to obtain and submit this information
sooner.
IV.
Issues
[15]
The issues are:
- Did the Officer
breach procedural fairness by:
- not considering
the Missing Documents; or
- not providing
the Applicant an opportunity to respond to her concerns?
- Was the
Officer’s decision reasonable?
V.
Standard of Review
[16]
The standard of review is correctness for
procedural fairness and otherwise is reasonableness (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43).
VI.
Analysis
A.
Procedural Fairness
(1)
The Missing Documents
[17]
If there is opposing evidence as to what
happened at an interview, this Court has held that the Officer’s notes should
be preferred (Oei v Canada (Minister of Citizenship and Immigration),
2002 FCT 466 at para 42). Officers make their notes contemporaneously with each
interview and have no vested interest in any particular outcome of an application.
[18]
That reasoning applies to this case. The Officer
is an experienced professional who interviews applicants on a regular basis.
She consistently stated in her affidavit and during cross-examination that her
standard procedure is to note any documents that are submitted during an
interview, to accept and review those documents, to put to the Applicant any
questions related to those documents and to keep those documents on file,
before rendering a decision. The Missing Documents are not referenced in her
notes nor are they contained in her file.
[19]
The Officer’s explanation is corroborated by the
notes she made at the time of the interview and she has no vested interest in
the outcome of the Applicant’s application for permanent residence. In
contrast, nearly ten months passed before the Applicant recollected the
interview in his written affidavit.
[20]
Furthermore, it was not until approximately nine
months after the interview took place, that the Applicant first identified the
issue of the Missing Documents. If the Applicant knew that those documents were
critical to his application but were not considered by the Officer or contained
in the CTR, it is only prudent and reasonable that this issue would have been raised
immediately.
[21]
Finally, the Applicant had the responsibility to
put before the Officer all the material necessary for a favourable decision to
be made; visa officers are under no legal duty to ask for clarification or for
additional information before rejecting a visa application on the ground that
the material submitted was insufficient to satisfy them that the relevant
selection criteria were met (Madan v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 1198 at para 6).
[22]
If the Applicant did bring these documents to
the interview, either he should have properly brought them to the attention of
the Officer, or he should have identified this issue and submitted evidence in
support of his position in a timelier manner, such that the Court would not be
asked to speculate and disregard the Officer’s notes nearly a year later.
(2)
The Applicant’s Opportunity to Respond
[23]
The Applicant submits that the Officer did not
give him an opportunity to respond to her concerns regarding: financial
resources and ability to sustain himself in Canada; knowledge of the English
language; and challenges of farming in Canada.
[24]
The Respondent submits that the Officer’s
concerns were considered and put to the Applicant during the interview. The
Applicant simply failed to correct or contradict those concerns.
[25]
The content of the duty of fairness owed to visa
applicants is at the low end of the spectrum (Trivedi v Canada (Minister of
Citizenship and Immigration), 2010 FC 422 at para 39). Where a visa officer
has concerns arising directly from requirements of legislation or regulations,
she has no duty to provide the applicant an opportunity to address those
concerns (Hassani v Canada (Minister of Citizenship and Immigration),
2006 FC 1283 [Hassani] at para 24).
[26]
However, a visa officer must give the applicant an
opportunity to address his or her concerns arising from the credibility,
accuracy or genuine nature of information submitted (Hassani at para
24).
[27]
In my opinion, there was no breach of procedural
fairness. The Applicant’s credibility was not an issue and the Officer was not
required to provide him an opportunity to address her concerns with respect to
the requirements of the legislation. Regardless, the Applicant was asked many
questions that gave him the opportunity to disabuse the Officer of her
concerns.
[28]
The Officer’s concerns were related to the
Applicant’s ability to purchase and manage a farm in Canada. She found that the
Applicant knew nothing about Canadian farming practices, had not conducted any
research, knew nothing about his intended destination and did not have
sufficient financial resources.
[29]
The Officer had no duty to provide the Applicant
an opportunity to address her concerns with respect to the requirements of the
IRPA and its regulations. The onus was on the Applicant the show he had the
ability to be self-employed and make a significant contribution to Canada
through the purchase and management of a farm, pursuant to subsection 88(1) of
the IRPA Regulations.
[30]
Nevertheless, the Applicant was asked many
questions that gave him the opportunity to disabuse the Officer of her
concerns. For example, the Officer asked: what he would cultivate; where
Brampton was located; what grew in that region; what the temperature was in
January; what research he had done regarding the economy, markets, climate and
demography in Ontario; what types of wheat were grown; what crop prices were;
what he knew about distribution channels; how he would finance the purchase of
a farm; what he expected land and machinery to cost; and what his expected rate
of return was.
[31]
Despite her statement that the Applicant did not
have the “intention and ability” to purchase and
manage a farm, the nature of her questions shows she was focused on his
knowledge and capabilities. Given the Applicant takes issue with the Officer’s
assessment of his answers to her questions as well as the rest of his
application, the issue is not one of procedural fairness, but the
reasonableness of the decision.
B.
Reasonableness of the Decision
[32]
The Applicant submits that he provided
reasonable explanations and answers to the Officer’s questions about farming
practices in Canada. Furthermore, the Officer did not ask questions about his
previous experience as a farmer, even though that experience is relevant to his
eligibility.
[33]
The Respondent submits that the Applicant failed
to discharge his onus to provide sufficient information to support his
application. Based on his answers to her questions, the Officer reasonably
found he did not meet the eligibility requirements.
[34]
Considering the Applicant’s vague plans, lack of
research and the rigorous requirements set out in the Officer’s Operation
Manual, it was reasonable for the Officer to have concerns and find the
Applicant did not have the intention or ability to purchase and manage a farm
in Canada.
[35]
It is well-established that the onus is on an
applicant to provide sufficient information to a visa officer to support his or
her application (Guryeva v Canada (Minister of Citizenship and Immigration),
2015 FC 1103 at para 5).
[36]
If an applicant’s plans are excessively vague or
unrealistic, it is unlikely that he can meet eligibility requirements.
Similarly, a lack of research with respect to a proposed venture could justify
a finding that the plan was not viable (Shehada v Canada (Minister of
Citizenship and Immigration), 2004 FC 11 at para 7).
[37]
This Court dealt with a similar scenario in Sahota
v Canada (Minister of Citizenship and Immigration), 2005 FC 856 and
stated:
[10] The Visa Officer was not satisfied that
Mr. Sahota had the intention and ability to be self-employed in Canada.
Although he had what she deemed to be a comprehensive business plan, he did not
know what it meant. The notes of interview indicate that he did not know what
crops were suitable to be grown in Ontario, where he intended to locate, and
was not aware of geography and climactic conditions. Furthermore, his prior
experience had been in growing wheat and rice and he now intended to grow fruit
and vegetables. His only experience in that regard was growing vegetables for
his own consumption. There are parts of her letter decision, and notes, which
are questionable. Although Mr. Sahota appeared to have sufficient assets, she
was concerned that most of them were fixed assets, i.e. his farm in India which
would have to be sold. She was also concerned that he had not previously
visited Canada to assess the situation first-hand.
[11] […] even on a reasonableness simpliciter
standard of review, it cannot be said that the overall decision was
unreasonable. […]
[38]
Here, the Applicant’s plans were excessively
vague. He could not explain what he would cultivate, what crop prices were,
what machinery cost, what land cost, the specifics of distribution channels or
how he would achieve his expected rate of return. When asked about any research
he had done, he only referred to the time of year in which crops grew and could
not refer to any websites he had visited. The Applicant admits in his
affidavit, “[a]ll I knew is that I wanted to settle in
Ontario, close to the Greater Toronto Area.”
[39]
The onus was on the Applicant to satisfy the
Officer that he had the intention and ability to be self-employed in Canada and
to make a significant contribution to Canada through the purchase and
management of a farm. Although not binding on this Court, the Officer’s
Operation Manual refers to the “rigorous threshold”
that an applicant must satisfy with respect to this “highly
skilled and capital-intensive industry”:
It is important, when determining an
applicant’s intent and ability to purchase and manage a farm, to be aware that
farming is a highly skilled and capital-intensive industry with real estate
making up 54% of an average farmer’s assets. The Canadian Federation of
Agriculture (CFA) reports that in Canada the average value of farmland varies
significantly from province to province but ranges from $330 to $4,600 per
acre. Farmland closest to urban centres has a higher market price. Average farm
size varies from province to province with Newfoundland reporting an average
farm size of 146 acres while Saskatchewan reports an average farm size of 1,152
acres. […]
In the 1996 census, 98% of farms are
family-operated businesses. The CFA advises that “more than ever before, the
successful Canadian farmer must be adaptable to the different requirements of
running a farm business. The farmer must be able to recognise an animal that is
ill, fix a malfunctioning combine and finish off the day by hooking up to the
Internet to check the state of the world markets.”
Farming has become a business that requires,
in addition to more traditional agricultural skills, a working knowledge of
computers and other high-tech equipment. According to the 1996 census, more
than 21% of Canadian farm households own one or more computers. There is also a
trend to higher education in the farm community.
In other words, the successful applicant
must meet a rigorous threshold: sufficient capital, appropriate experience and
appropriate skills.
(Immigration, Refugees and Citizenship
Canada, OP 8: Entrepreneur and Self-Employed, Ottawa: 23 February 2016
at s 11.3).
[40]
Notwithstanding the Applicant’s previous
experience as a farmer in India, which was briefly mentioned in the Officer’s
notes, given that farming practices in India are likely different than in
Canada, it was reasonable for the Officer to give little weight to this factor.
JUDGMENT in IMM-861-17
THIS COURT’S JUDGMENT is that:
1.
The application is dismissed;
2.
There is no question for certification.
"Michael D. Manson"
FEDERAL
COURT
SOLICITORS
OF RECORD
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