Date: 20010112
Docket: IMM-3016-99
BETWEEN:
ALI MOHAMMAD SAADAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of the visa officer, rendered November 7, 1999 wherein the applicant and accompanying dependants were denied immigrant visas under the entrepreneurial class.
BACKGROUND FACTS
[2] The applicant, a citizen of Iran, applied for immigrant visas for himself as well as his wife and his two children. He applied for consideration as an "entrepreneur" pursuant to section 2(1) of the Immigration Regulations, SOR/78-172, as amended (the "Regulations").
[3] The applicant was interviewed by visa officer Lavelle at the Canadian Embassy in Tehran on November 29, 1998. The visa officer questioned the applicant about his plans for establishing or running a business in Canada. The applicant indicated that a friend had a knitting factory in Canada and that the two of them would work together at producing wool products (specifically clothing) for sale in Canada as well as export to the United States. The applicant had not conducted any serious market research or similar preparatory work, but had engaged in only informal discussions with his associate in Canada. The applicant indicated to the visa officer that Canada is a cold country and would have a demand for wool clothing.
[4] The applicant's background, however, included many years of experience as owner of a similar business in Iran: the applicant would travel to Germany to purchase machinery and oversaw the operations in Iran, which employed three people. He indicated that he held property worth $2,000,000 CAD.
[5] On February 24, 1999, the visa officer wrote to the applicant's solicitor outlining her concerns with respect to whether the applicant could qualify for immigration to Canada as an entrepreneur. While he had considerable experience overseeing companies in Iran, the visa officer felt that the applicant's specific involvement was largely technical and not managerial. The visa officer was also concerned about the viability of the applicant's plan, as he had done no research into the plan. She requested that the applicant provide additional information that he might have.
[6] The applicant replied to the letter on September 12, 1999 and another visa officer (who had taken over Lavelle's posting) reviewed the file after receiving the letter from the applicant and decided to deny the application. The refusal letter of the visa officer stated in relevant part:
| During your interview, you demonstrated only very limited knowledge about establishing a business in Canada. The additional information you supplied by FAX in September 1999 did not sufficiently address any of the concerns communicated to you at the interview. |
| Therefore, you come within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act and you do not fulfill or comply with the provisions of the Act and the regulations. For these reasons, pursuant to section 9(4) of the Immigration Act, your application has been refused. |
[7] The rationale for the rejection was as follows:
| . . . I noted that the proposed project he outlined in his letter was based on ". . . marketing of my friends who are living in Canada and Zarrin Tex Co. which are located in Toronto, in winter and spring of 1999, and considering that Canada is a cold region with high demand and low production of knitwear". As I reviewed this letter, the file, Ms. Lavelle's notes of the interview and all previous documents submitted, I noted that there was nothing substantive in the letter that had not already been presented earlier in the application and known by Ms. Lavelle when she raised her concerns with Mr. Saadat at the interview. Mr. Saadat had done little, if any, research into potential customers, the competition he would face and the potential viability of his proposed business in Canada. |
| Mr. Saadat had been given ample opportunity to demonstrate that he has the ability to establish, purchases or make a substantial investment in a business or commercial venture in Canada and that he intends and has the ability to provide active and ongoing participation in the management of the business or commercial venture. In my complete review of all the material before me, including the supplementary information that had been submitted on September 12, 1999, I was of the opinion that Mr. Saadat was unable to meet the requirements of the definition of "entrepreneur". |
(Nectoux affidavit at paragraphs 4, 5)
APPLICANT'S SUBMISSIONS
[8] The applicant argues that the visa officer misinterpreted the definition of "entrepreneur" and imported a requirement to do market research as a preliminary requirement for being considered an "entrepreneur". Investor immigrants are no longer required to file and follow a formal business plan in order to receive immigrant visas.
[9] The applicant believes that the record reflects that the visa officer was concerned with the research and preparation that the applicant had done and not whether the applicant had an ability to establish and run a business. The applicant also argues that this focus caused the visa officer to ignore other evidence before her and constitutes an error of law.
[10] In light of all the evidence of the file, the applicant argues that the visa officer made an unreasonable decision that cannot be supported.
RESPONDENT'S SUBMISSIONS
[11] The respondent argues that insufficient research is relevant to the consideration of whether the applicant has the ability to establish a business in Canada. Case law holds that the fact that the prospective immigrant has conducted no research and has no clear plan impacts very closely on the ability of the immigrant to establish a business.
[12] With respect to the other arguments raised by the applicant, the respondent contends that these issues are merely a request that the Court improperly engage in a reweighing of the evidence that was before the visa officer and that the Court substitute its decision for that of the visa officer.
APPLICABLE LAW
[13] Section 2(1) of the Regulations define "entrepreneur" as follows:
| "entrepreneur" means 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 in Canada 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;
|
« entrepreneur » désigne un immigrant
a) qui a l'intention et qui est en mesure d'établir ou d'acheter au Canada une entreprise ou un commerce, ou d'y investir une somme importante, de façon à contribuer de manière significative à la vie économique et à permettre à au moins un citoyen canadien ou résident permanent, à part l'entrepreneur et les personnes à sa charge, d'obtenir ou de conserver un emploi, et
b) qui a l'intention et est en mesure de participer activement et régulièrement à la gestion de cette entreprise ou de ce commerce;
|
[14] The case law indicates that a host of factors are considered in determining whether an individual meets the definition of entrepreneur, but among the factors is the viability of the business.
[15] In Chiu v. Canada (M.C.I.) (1996), 35 Imm.L.R. (2d) 281 (F.C.T.D.), the Court held that it was within the visa officer's jurisdiction to ensure that a viable business venture is planned. A lack of research by the potential immigrant would often forestall any finding of viability.
[16] Chiu, supra, was cited by Justice Décary in Bakhshaee v. Canada (M.C.I.) (1998), 45 Imm.L.R. (2d) 196. Although another issue was central to the appeal in that case, Justice Décary approved of the visa officer's decision that the applicant could not be an entrepreneur because the applicant was vague about his proposed business and its viability; had done no research into potential customers; current rents or salaries and other aspects of setting-up a business.
[17] The following issues were raised by the applicant:
1. Did the visa officer err in law in interpreting and applying the definition of entrepreneur?
2. Did the visa officer err in law in ignoring relevant evidence?
3. Did the visa officer reach an unreasonable decision?
ANALYSIS AND DECISION
Did the visa officer err in law in interpreting and applying the definition of entrepreneur?
Mr. Justice Décary made the following comments in Bakhshaee, supra, at page
197:
| The visa officer has explained that at the interview the applicant was vague with respect to his proposed business and its viability. The applicant did not know whether he would face competition, had no idea of current rents or salaries in Canada, had done no research into potential customers, would wait until he was admitted to Canada before investigating what the country needs and had done little, if any, research into the feasibility of establishing his proposed business. |
| These factors, as noted by Simpson J. in Chiu v. Canada (Minister of Citizenship & Immigration) (1996), 121 F.T.R. 39, are very much relevant to the inquiry made by a visa officer. As my colleague writes at p. 42: |
| the language of the definition makes it clear that potential viability is an essential characteristic of an applicant's proposals. No officer can be obliged to decide whether a business can make an economic contribution and employ people unless, of necessity, the officer also concludes that the business has a realistic chance of success. |
There is no doubt that the applicant has considerable business experience in his own country and has been successful over the years, however, he still has to meet the requirements of the Regulations in order to emigrate to Canada. The definition of "entrepreneur" contained in the Regulations states that the applicant must intend to become involved 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 in Canada for one or more Canadian citizens or permanent residents". It seems to me that a business must be seen to be viable by the visa officer in order to determine whether the proposed business will make a contribution to the economy or create employment opportunities. The visa officer must have information about the proposed business in order to determine the viability. In order to meet the definition of entrepreneur, the applicant must have shown to the visa officer that his proposal would have made a significant contribution to the economy and create a certain number of employment opportunities. The visa officer did not find that the applicant had so persuaded her. This is one of the reasonable conclusions that the visa officer could have reached. It is not the role of this Court to substitute its opinion for that of the visa officer, provided that the decision satisfies the criteria set out by the Supreme Court of Canada in [1982] 2 S.C.R. 2">Maple Leaf Farms v. Government of Canada [1982] 2 S.C.R. 2 at pages 7 to 8:
| . . . It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsbiility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. |
I am of the opinion that the decision of the visa officer meets that criteria. As well, by applying a standard of review of reasonableness simpliciter, I find that the decision was reasonable.
| Did the visa officer err in law in ignoring relevant evidence? |
I cannot find that the visa officer ignored relevant evidence. In fact, it appears that the visa officer considered all of the evidence presented to her and further evidence was sought.
Did the visa officer reach an unreasonable decision?
I have answered this issue by my analysis in Issue 1, therefore, I find that the visa officer did not reach an unreasonable decision.
| [21] Counsel for the parties will be provided with an opportunity to make a request for |
certification of a serious question of general importance. Counsel for the applicant shall file written representations, if any, on or before January 19, 2001 concerning the certification of a serious question. Counsel for the respondent shall file a written response, if any, on or before January 26, 2001.
| [22] The application for judicial review is dismissed. |
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
January 12, 2001
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