Date: 19990326
Docket: IMM-4894-97
BETWEEN:
JAFAR AGHA YAZDANIAN,
GHODSI KHANOUM YAZDANIAN,
and HOSSEIN YAZDANIAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of Visa Officer Kathryn Louise Porter (the Visa Officer) to reject the applications of Jafar Agha Yazdanian (the Applicant), Ghodsi Khanoum Yazdanian (spouse) and Hossein Yazdanian (dependent son), for permanent residence in Canada.
[2] The Applicants are all citizens of Iran. The Applicant applied for permanent residence in Canada under the entrepreneur class. He has been running his own businesses in Iran for over 30 years and currently operates a poultry feed business and a pistachio farm. His estimated net worth is in excess of four million dollars.
[3] After an interview, the Visa Officer concluded that the Applicant did not meet the definition of entrepreneur. In her rejection letter, the Visa Officer acknowledged his extensive business experience in Iran, but concluded that she was not satisfied he had the ability to establish a business in Canada.
[4] The negative factors she referred to are the following:
| " he only had 6 years of formal education, |
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| " he speaks English with great difficulty, |
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| " no training in, and only limited first-hand knowledge of, Western management and business practices, |
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| " he wants to start an import-export business, but his primary business has never been an import-export business |
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ANALYSIS
[5] In her decision, the Visa Officer stated that the Applicant spoke English with difficulty, had only six years formal education and would experience difficulties because of his age (65 years). In her original assessment, the Visa Officer awarded the Applicant zero points for each of these three selection criteria. The Applicant alleges that this constitutes double counting, which is not permitted.
[6] In Stefan v. MCI,1 Simpson J. held that it is permissible for a visa officer to reconsider the factors listed in Schedule I, provided that the focus of the assessment is not on the skill level, which has already been assessed.
What must be seen in an analysis under personal suitability is an assessment focused on the four Factors and not on the skill level already recorded in other parts of the assessment. If this focus is achieved then Zeng does not apply, and the fact that topics covered elsewhere in the assessment are looked at again from a different perspective involving the Factors will not constitute a reviewable error.2
[7] In the present case, the Visa Officer's letter is focussed on the Applicant's abilities to successfully establish a business in Canada. The visa officer did not err when she looked to his abilities in English, his low level of formal education and his age in assessing whether or not he would be able to establish a business in Canada. To the extent that she reconsidered these factors, it is my opinion that she did not engage in double counting. She assessed his skills and then she assessed his ability to establish a business in Canada.
| 2) Application of the definition |
[8] The definition of entrepreneur is contained in subsection 2(1) of the Immigration Regulations3:
| "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. |
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|
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| " 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; |
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[9] In the present case, the Visa Officer assessed the Applicant's ability to establish a business or commercial venture in Canada. On cross-examination, she admitted that she did not consider his ability to purchase or to make a substantial investment in a business or commercial venture in Canada. In fact, she agreed that a lump sum of $500,000.00 would enable a person to purchase or invest in a business in Canada.
[10] The Applicant claims that the Visa Officer misapplied the test to determine whether he was an entrepreneur, because she relied solely on the words "establish a business" and ignored the rest of the definition. However, as pointed out by the Respondent, the Applicant's business plan only relied on the establishment of a business.
BUSINESS PLAN
My plans as an entrepreneur in Canada are to establish a feed manufacturing business, as well as, a business that trades in feed exports. The primary focus of the feed business will be the export market. I recognize that Canada is much more interested in promoting export of Canadian (raw and manufactured) resources and I will attempt to focus my business in that direction, as well as, establishing a manufacturing enterprise. I have CDN$700,000.00 to start my business plan and I am open to considering other opportunities once I am in Canada.4
[11] A similar situation was dealt with by my colleague Décary J.A. in Bakhshaee v. Canada (M.C.I.).5 He concluded that there was no requirement to assess an applicant according to all three options when the applicant had chosen to apply under only one. He states at page 159:
"An applicant may well decide to base his application and submit evidence with regard to only one of the three options, in which case a visa officer need not, of course, examine the other options. In the case at bar, the applicant limited himself to allegations and evidence pertaining to the establishment of a business. The visa officer cannot be faulted for not having examined the other options, with respect to which there was simply no evidence.".
[12] Consequently, I cannot find any error of law or denial of procedural fairness due to the Visa Officer"s failure to consider the Applicant"s ability to purchase or make a substantial investment in a business or commercial venture in Canada.
[13] As for paragraph (b), the second part of the definition of entrepreneur, it requires that the individual intend and have the ability to provide "active and ongoing participation in the management of the business or commercial venture." The Applicant challenges the Visa Officer's interpretation of the terms "active" and "ongoing". In the Immigration memorandum dealing with processing entrepreneurs and self-employed immigrants, instructions are given with respect to the application of the terms active and ongoing.
"Active" can be considered as causing action or change, and "ongoing" as continuing.6
[14] During cross-examination, the Visa Officer stated that she and her colleagues consider the term active as "day-to-day operational activity as opposed to somebody sitting outside the country, just investing money or popping by once a month.".7 The Applicant submits that this is a misinterpretation of the law. I agree with the Applicant. Requiring day-to-day operational activity is too high a burden. It is my opinion that "active" and "ongoing" participation in the management of a business simply mean being in a position to continually cause action or change in the operation of a business, as suggested by the operations manual. He or she need not be present for the day-to-day running of the operation.
[15] At the very least, it is unclear whether the Visa Officer considered the Applicant"s ability to provide active and ongoing participation in the management of the business. Her letter does not mention his ability to provide active and ongoing participation in management, but simply focusses on his ability to establish a business. In her affidavit, she accepts that he intended to provide active and ongoing participation in management, but she was not satisfied he had the ability to do so. In justifying her conclusion, she raises her concerns about his lack of English and his lack of experience in a Western business environment and in Western business practices. She also raises his lack of Canadian business contacts. In my opinion, participating in management is different from establishing a business and the Visa Officer has not made this distinction.
[16] The Applicant submits that the Visa Officer breached the duty of fairness by not informing the Applicant of her concerns regarding his "Western" business experience.
[17] The Respondent, on the other hand, submits that the onus is on the Applicant to provide sufficient information to the Visa Officer to show that he is eligible to come to Canada and that he ought to have known that Western business experience would be a factor.
[18] While I agree with the Respondent that the Applicant has the onus to provide sufficient information to the Visa Officer to support his application, when the Visa Officer has a specific concern that could impact negatively on the application, fairness requires that the Applicant be given an opportunity to respond to her concern.8
[19] The Respondent submits that this was only one of several factors considered by the Visa Officer. However her affidavit clearly demonstrates that it was a "key" element. She states:
While it is indisputable that the Applicant has extensive business experience in Iran, and that he has successfully run several businesses in Iran, this was not sufficient to establish that the Applicant was able to do business in a new way, in a society where living, working and business conditions were fundamentally different from those in the country where he had lived and worked all his life. The Applicant did not have experience working in a Western business environment or knowledge of Western business practices. As such, there was insufficient indication that he had the knowledge or ability to work in the Canadian business environment, a Western business environment.9
In such a case the Visa Officer should allow the Applicant an opportunity to answer those concerns.
[20] Although I recognize that experience in the "West" may be a factor to take into account in assessing an application from a non-Western background, considering that the working and business conditions are different, I would point out that too much emphasis on Western business experience would deny applications from successful business people who have excelled in business in other cultures.
[21] In the case at bar, the Applicant has run several businesses, ranging from poultry feed production to growing pistachios. He has built up assets in excess of four million dollars. There is clear evidence of his abilities in the business world. Certainly a person so experienced in business will retain his or her expertise when transferring to "Western" business practices. I would suggest that the Visa Officer should not give it too much weight.
[22] For these reasons, the application for judicial review is granted and the matter sent back for reconsideration by a different visa officer.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
March 26, 1999.
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1 (1995), 35 Imm. L.R. (2d) 21 (F.C.T.D.).
2 Ibid. at 24.
3 SOR/78-172, as am.
4 Applicant"s Record at 60.
5 (1998), 154 F.T.R. 158 (F.C.A.).
6 Immigration Canada, Overseas Processing Manual , c. 6, at 11, Applicant"s Record at 230.
7 Transcript of cross-examination of K.L. Porter (30 June 1998) at 10-11, (Q#48 - 49).
8 Fong v. Canada (M.E.I.), [1990] 3 F.C. 705 (F.C.T.D.).
9 Affidavit of K.L. Porter (sworn 17 December 1997) at para 10.
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