Date: 20030501
Docket: IMM-4141-01
Neutral citation: 2003 FCT 543
Toronto, Ontario, Thursday, the 1st day of May, 2003
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
MASOOD AKHTAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In January 1999, Mr. Masood Akhtar (the "Applicant"), a citizen of Pakistan, applied for permanent residence in Canada in the Entrepeneur category, listing his wife and four children as dependants. After an interview with visa officer Anne Elizabeth Vanden Bosch (the "visa officer") of the Canadian High Commission in London on June 28, 2001, the Applicant was advised orallythat his application was refused. A written decision, dated July 20, 2001, followed. The Applicant seeks judicial review of that decision.
Issues
[2] The Applicant raises the following issue:
1. Was there a denial of procedural fairness because the visa officer failed to provide the
Applicant with an opportunity to disabuse her of her concerns?
Analysis
[3] For the reasons that follow, I am of the view that this application should not succeed.
Issue #1: Was there a denial of procedural fairness because the visa officer failed to provide the Applicant with an opportunity to disabuse her of her concerns?
[4] A significant part of the interview with the Applicant and his family focussed on the status of three of the children who were over 18. Aside from establishing that the Applicant met the requirements for "entrepreneur", for these children to accompany the family to Canada, the Applicant had to satisfy the visa officer that they were still dependents. In support of this claim, the Applicant presented various school documents, at least one of which was fraudulent in the opinion of the visa officer.
[5] The Applicant's submissions relate to the visa officer's conclusion that some of the documents about the education of his daughters were false. The visa officer did not give the Applicant an opportunity to address this conclusion; she should not have summarily dismissed the application without further verification (Huyen v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1267 (T.D.) (QL); Negriy v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 710 (T.D.) (QL); Jiwan v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1601 (T.D.) (QL)). In addition, the visa officer effectively ambushed the Applicant during the interview with the conclusion of criminal inadmissibility and did not allow the Applicant an opportunity to disabuse her of those concerns (Sebai v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1530 (T.D.) (QL)). In the Applicant's submission, the finding that the educational documents were fraudulent compromised, in the visa officer's view, all of the other documents, including those tendered in respect of the Applicant's entrepreneur claim.
[6] A review of the CAIPs notes made at the time of the interview indicates that the visa officer informed the Applicant of her concerns with respect to the problematic documents and provided him with an opportunity to disabuse her of those concerns. Further, at the end of the interview, the visa officer provided the Applicant with an opportunity to add any more information and again advised him of her concerns. In my view, there was no breach of procedural fairness. Further, I see no evidence that the visa officer's concern with the educational documents coloured her view of the balance of the Applicant's documents.
[7] However, whether there was an error with respect to this aspect of the interview is irrelevant. Before the matter of the admissibility of the Applicant's children even arises, the Applicant was required to satisfy the visa officer that he met the definition of entrepreneur as defined in the Immigration Regulations, 1978, SOR/78-172 as amended ("Immigration Regulations"). Since his application failed on this point (discussed below), the issue of whether the children would be eligible to come to Canada with their father never arises.
[8] A review of her decision and of the CAIPS notes indicates conclusively that the main reason that the Applicant's application was refused was his inability to meet the definition of entrepreneur. In my view, this conclusion was open to the visa officer based on the material before her. The Applicant was unable to provide any documents related to or details of the business that he co-owned with his brother in the United States. The Applicant was also unable to provide evidence of his business in Pakistan. Finally, the Applicant was unable to provide details of his friend's business in Canada that he hoped to invest in or of his planned business in Canada. On this basis alone, it was open to the visa officer to reject the application.
[9] Even if the visa officer did breach the duty of procedural fairness and I am satisfied that she did not, I am of the view that her decision should not be quashed as no purpose would be served in remitting the matter for reconsideration (Sebai, supra). The fact that there was no reviewable error with respect to her decision on the merits, and indeed none was alleged by the Applicant, is sufficient to permit the visa officer's decision to stand (Sebai, supra).
Certified Question
[10] Neither party proposed a question for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed, there is no question for certification.
"Judith A. Snider"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-4141-01
STYLE OF CAUSE: MASOOD AKHTAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, MAY 1, 2003
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: THURSDAY, MAY 1, 2003
APPEARANCES BY: Mr. M. Max Chaudhary
For the Applicant
Ms. Ann Margaret Oberst
For the Respondent
SOLICITORS OF RECORD: Chaudhary Law Office
18 Wynford Drive
Suite 707
North York, Ontario
M3C 3S2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030501
Docket: IMM-4141-01
BETWEEN:
MASOOD AKHTAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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