Date: 20030115
Docket: IMM-4502-01
Neutral citation: 2003 FCT 31
TORONTO, ONTARIO, WEDNESDAY THE 15th DAY OF JANUARY 2003
PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
ARKADI TREIGUER
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of visa officer, Sara Trillo ( "the Officer") rendered under the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") refusing the applicant's application for permanent residence in Canada in the entrepreneur category.
[2] Subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations") defines an entrepreneur as an immigrant:
(a) who intends and has the ability to establish, purchase or make a substantial investment in a business or commercial venture in Canada that will make a significant contribution to the economy and whereby employment opportunities will be created or continued for one or more Canadian citizens or permanent residents, other than the entrepreneur and his dependants, and
(b) who intends and has the ability to provide active and on-going participation in the management of the business or commercial venture.
[3] In her refusal letter, the Officer stated that the applicant did not meet the definition of an entrepreneur because he did not have "the ability nor the expertise nor the funds to manage a successful business in Canada." She also noted that the applicant's business proposal was not viable and that she did not see how it could "make a significant contribution to the economy" of Canada.
[4] In her affidavit sworn for the purpose of these proceedings, the Officer elaborates the reasons for her negative conclusions, as follows:
1. the Applicant did not provide sufficient documentation to convince the Officer that he had experience in managing a profitable business;
2. the Applicant had no liquid assets, and his assertions about the market value of his business in Russia were not found credible by the Officer;
3. the Applicant had little knowledge of the details of his business proposal and could not provide adequate answers to the Officer's questions in that regard.
[5] This application for judicial review raises three issues:
1. did the Officer err in law by taking into account irrelevant considerations?
2. did the Officer ignore or misinterpret the evidence before her? and
3. was the Officer's decision in any way unreasonable or made in a perverse or capricious manner?
1. Did the Officer err in law by taking into account irrelevant considerations?
[6] The applicant first submits that the Officer placed an undue emphasis on the issue of profitability of the applicant's business in Russia and thereby imported an "extraneous consideration" into the assessment. The applicant cites Cho v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 808 (QL) (T.D.), where Blais J. noted (at para. 30):
Nowhere in the legislation is it stated that the business must have been profitable, or that he needed to have operated his own business.
[7] The respondent does not dispute that previous managerial experience and profitability of a previously operated business are not absolute requirements for an entrepreneur. However, jurisprudence of this Court clearly supports a proposition that they are relevant factors in assessing an applicant's abilities under the definition: Wang v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 677 (QL) (T.D.) at para. 14, Seghal v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 385 (QL) (T.D.) at para. 8-9; and Chou v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 819 (QL) (T.D.) at para. 32-33. As the respondent points out, even Cho, supra, supports the respondent's position. Justice Blais held that "the visa officer has to consider different factors in order to assess the ability of the applicant to actively manage a business in Canada" and that profitability of an existing business is one of the factors that may be considered (at para. 31-33).
[8] In the case at bar, the profitability of the applicant's business was only one of the several factors considered by the Officer. She also considered the applicant's assets, the level of his business knowledge and expertise as revealed in his ability to answer questions at the interview, and the viability of his business proposal. In the circumstances, I find that the Officer's reliance on the lack of profitability was not excessive and did not amount to an error of law: Hui v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 60 (QL) (T.D.) at para. 9-10, cited in Cho, supra, at para. 33.
2. Did the Officer ignore or misinterpret the evidence before her?
[9] The applicant contends that the documents put before the Officer warranted a conclusion that the applicant's business in Russia was profitable and that the applicant had sufficient assets for his business venture in Canada. The applicant therefore alleges that the Officer, in making adverse findings on these issues, ignored or misinterpreted the evidence.
[10] First, I note that the Officer did recognize and acknowledge that "a small" profit had been made in 1999. The documents on record show that "Electropromkomplekt," the company owned and operated by the applicant, reported a loss of about U.S. $7,000 for the year 1998 and a profit of about U.S. $14,500 for the year 1999. No statement of profits and losses was submitted for the year 2000, despite a requirement contained in the interview notice to provide such documents for three recent years.
[11] At paragraph 12 of her affidavit, the Officer noted:
Without further accountants' reports, balance sheets or income tax returns, I had no way of double-checking the numbers in the miscellaneous reports and statements submitted by the Applicant, of seeing a better breakdown of figures (such as would have been found in a balance sheet or tax return) or of seeing a more detailed breakdown of figures than in the documents presented. All to the end of attempting to satisfy myself that the Applicant had the necessary business/management experience, such as that of managing a profitable company. I reminded the Applicant that we required all applicants to provide the business documents for their businesses, such as accountant's reports, balance sheets and income tax returns for the past three years along with an official translation of each. This was first brought to the Applicant's attention in a letter sent to help him prepare for his interview (see Exhibit A). The Applicant did not have any explanation for why he could not provide the requested documents with translations. I continued reviewing his file to see if I could find other documents which would indicate that the Applicant could have the requisite business/management experience but I found none that could do so. I gave some weight to the applicant's experience at Baltika, his reference letters and numerous contracts but in the end, the Applicant provides insufficient proof that he had managed a profitable business or that he had the ability to do so.
[12] Considering the absence of reliable and audited financial information, I find the latter conclusion entirely reasonable and consistent with the evidence.
[13] At the interview, the applicant also alleged that the current market value of his referenced business was about U.S. $330,000 (as opposed to approx. U.S. $89,000 originally listed in his application form). The Officer did not find that assertion credible. The applicant also provided documents of ownership and appraisal for two properties in Russia. The applicant stated that he had no bank deposits. The Officer was concerned about the lack of any liquid assets. In light of the notorious instability of the Russian economy, the Officer was not satisfied that the sale of the applicant's business and properties would yield a sufficient amount of funds for his business venture in Canada. While a different conclusion might have been open to the Officer, her cautious approach was not irrational or capricious: Dardic v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 326 (QL) (T.D.) at para. 17. The second ground of review must therefore also be rejected.
3. Was the Officer's decision in any way unreasonable or made in a perverse or capricious manner?
[14] The Officer was faced with the applicant's inability or unwillingness to provide adequate answers and details pertaining to his business experience and plans. According to the Officer, the applicant had no knowledge of the details of his business proposal and could not particularize his investment projects (affidavit of Sara Trillo at para. 9). Likewise, "he could not or would not explain anything about the business which he had indicated he owned in Russia, despite repeated questions" (ibid. at para. 14). This led the Officer to conclude "that the Applicant had little knowledge of business procedures, and, therefore, that he was not a businessman".
[15] The applicant attacks the Officer's statement that he is "not a businessman" as perverse and capricious in view of the fact that he provided letters of reference and copies of business contracts to the Officer.
[16] The expression used by the Officer may be inaccurate and unfortunate. However, I agree with the respondent that it must not be taken in isolation and that it is clear from the context what the Officer meant. She did not imply that the applicant had never had any involvement whatsoever in business affairs. She simply concluded that, despite his involvement evidenced by the letters and contracts, the applicant had not met the burden that rested on him to satisfy her that he could establish and manage a successful business in Canada.
[17] The terms of subparagraph 18.1(4)(d) of the Federal Court Act imply that an ultimate decision need only be rationally supported by some material before the tribunal. In the case at bar, the Officer's recollection of the interview presented in her affidavit and in the CAIPS notes is uncontroverted. In my opinion, it establishes sufficient reasonable grounds for the Officer's conclusion that the applicant failed to meet the definition of an entrepreneur in subsection 2(1) of the Regulations.
Conclusion
[18] Overall, I find that the Officer made no error of law and that her findings of fact are supported by the evidence and are not patently unreasonable, capricious or perverse. In the result, this application for judicial review will be dismissed. There will be no order as to costs. Neither counsel recommended certification of question.
ORDER
The application for judicial review against the decision of the visa officer dated August 28, 2001, refusing the applicant's application for permanent residence in Canada in the entrepreneur category is dismissed without costs.
"Luc Martineau"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4502-01
STYLE OF CAUSE: ARKADI TREIGUER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, JANUARY 13, 2003
REASONS FOR ORDER
AND ORDER BY: MARTINEAU J.
DATED: WEDNESDAY, JANUARY 15, 2003
APPEARANCES BY: Mr. Jack Davis
For the Applicant
Mr. Stephen Jarvis
For the Respondent
SOLICITORS OF RECORD: Jack Davis
Barrister & Solicitor
Davis and Grice
1110 Finch Avenue West, Suite 706
Toronto, Ontario
M3J 2T2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20030115
Docket: IMM-4502-01
BETWEEN:
ARKADI TREIGUER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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