Date: 20011108
Docket: IMM-4282-00
Neutral citation: 2001 FCT 1224
BETWEEN:
HASSAN DARYAIPOUR,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] In the present case the Applicant was refused an immigrant visa in the entrepreneur category. The Visa Officer's decision is being attacked on the basis that it was reached on irrelevant considerations.
[2] The Applicant at the time of the interview worked full time as a flight attendant, but, in addition, for approximately seven years had worked three times per week in two restaurants owned by a friend. The Applicant stated that he did not receive a salary but rather received 20% of the profits, never invested money in the restaurants, and had no documentation of an arrangement between himself and his friend. The Applicant explained to the Visa Officer that he did not declare his income to the Iranian government because it was forbidden under Iranian law for persons working for state companies to receive money from other professional activities.
[3] In reaching a conclusion as to whether the Applicant conformed with the definition of "entrepreneur" in s.2(1) of the Immigration Regulations, 1978, the Visa Officer in the refusal letter of June 30, 2000 said as follows:
In my opinion you do not meet this definition of entrepreneur because you did not satisfy me that you have the ability to provide active and on-going participation in the management of a company. According to the documentation you provided with your application and at the interview, you are working full-time for the national aviation company in Iran. You declared at the interview that you are also working as a manager in a restaurant named Javan. You presented some letters signed by individuals confirming this information, but no official documentation. You explained this lack of documentation by saying that it is forbidden to work for another employer while working for a state company. You claimed that you do not receive a salary but a part of the profits from the restaurant. Again, no documentary evidence was presented as you said that you cannot declare this income to the government.
This lack of documentary evidence related to your alleged activities in the food services, added to the facts that you have no formal training in management or cooking and that this activity is prohibited by the Iranian authorities led me to conclude that you do not have the ability to provide active and on-going participation in the management of a business or a commercial venture in Canada. [Emphasis Added]
[4] From the Visa Officer's decision it appears that, in addition to the Applicant's undocumented story being considered suspect without cogent reasons being provided, his business conduct in Iran was a negative factor considered in rejecting his application. At the very least, I find this last factor to be a consideration wholly extraneous to the decision at hand, and works a manifest unfairness to the Applicant by its inclusion. Thus, I find the decision was made in reviewable error.
ORDER
Accordingly, I set aside the Visa Officer's decision and refer this matter to a different Visa Officer for redetermination.
"Douglas Campbell"
Judge
Winnipeg, Manitoba
November 8, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-4282-00
STYLE OF CAUSE: Hassan Daryaipour v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: November 8, 2001
ORDER AND REASONS FOR ORDER OF
THE HONOURABLE MR. JUSTICE CAMPBELL
DATED NOVEMBER 8, 2001
APPEARANCES
David Davis for the Applicant
Aliyah Rahaman for the Respondent
Department of Justice
301 - 310 Broadway
Winnipeg, MB R3C 0S6
SOLICITORS OF RECORD
Davis & Luk Immigration Law for the Applicant
Barrister, Solicitor & Notary
201 - 233 Portage Ave.
Winnipeg, MB R3B 2A7
Morris Rosenberg for the Respondent
Deputy Attorney General of Canada
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