Date: 19990702
Docket: IMM-3391-98
BETWEEN:
OLEG STANISLAVOVICH DAMASKIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] By Originating Notice of Motion the applicant seeks judicial review of the decision of a visa officer employed at the Canadian Consulate General in New York City, rendered by letter dated May 22, 1998. That decision determined that the applicant is not an entrepreneur as defined by the Immigration Regulations and that he did not qualify for immigration to Canada as a permanent resident and as an entrepreneur.
[2] The applicant is a Russian citizen who has resided in Canada since 1992. Since arriving in Canada he was employed by Cansov Marine Products ("Cansov") as an Assistant General Manager and Deputy General Manager. He has also been employed as Vice-President of International Operations of a related company, Carusco Marine International, operating out of the same premises as Cansov. Cansov exports Canadian fish products to international markets and imports fish from Russia. It is said to be a company wholly owned by three state-owned operations or corporations in Russia.
[3] With the help of an immigration consultant, the applicant completed an application for permanent residence as an entrepreneur in Canada on February 14, 1997. That application was received by the Canadian Consulate in Buffalo, New York and was subsequently transferred to the Canadian Consulate General in New York City to conduct the assessment interview, scheduled for February 18, 1998. The applicant, his wife and son, whose applications for permanent residence in Canada, as well as that of his daughter, were dependant upon that of the applicant, attended at New York as directed.
[4] At the interview the visa officer assessed the applicant as an "entrepreneur", as that term is defined in sub-section 2(1) of the Immigration Regulations, 1978, SOR/78-172 as amended, which provides that an entrepreneur is an immigrant
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(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 |
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(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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[5] There may have been some confusion at the interview regarding the applicant's employer in Canada since the applicant mentioned in response to the visa officer's questioning that he was employed by Carusco and by Murmansk Trawlflot. The latter company was one of the three Russian operations which owned Cansov. The visa officer avers that during the interview the applicant did not respond with much information about his employment or the respective operations of the companies other than their function as purchasers of Canadian fish for export markets and as importers of Russian fish for processing in Canada. Moreover, meaningful financial documents were not provided though the applicant had been advised in advance to produce such documents.
[6] In connection with his application for permanent residence status as an entrepreneur the applicant had submitted to provincial authorities in Nova Scotia a business proposal outlining his plans to establish "Damaskin Fisheries", a seafood and shipping consultancy firm to act as a broker in selling fish mainly purchased from Russian trawlers and processed in Nova Scotia or New England for sale to Baltic nations, Russia and the Ukraine. The plan envisaged development from a small staff to one engaging a number of fish plant workers in Nova Scotia. That proposal met with approval of provincial officials and the proposal was included with his application for permanent residence as an entrepreneur and was among the documents in the record available to the visa officer.
[7] Before his interview in New York the applicant had invested in a newly formed corporation in Nova Scotia, Alosa Fisheries. Others were engaged in operating that company, since he was apparently not able to be employed in that enterprise under the immigration arrangements for his stay in Canada at the time. Apparently those operating the new company sought his advice as needed, and it was agreed he would join the company when his immigration application for permanent residence was approved.
[8] In his affidavit in support of the application for judicial review the applicant avers among other things, inter alia:
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13. I had, at the time of my selection interview, already: |
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i) established an expanded version of the fish business proposed in my immigration application, titled Alosa Fisheries, in April, 1997 |
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ii) made a significant investment in Alosa fisheries valued at $15,000.00; |
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iii) chosen two other business partners to work with me in Alosa Fisheries |
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iv) parlayed my $15,000.00 in Alosa Fisheries into a business now worth approximately $500,000.00; |
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v) employed at least 8 Canadians at Alosa Fisheries and today employ 13 Canadians; |
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vi) begun plans to expand Alosa Fisheries to include a fish processing plant in Pictou, Nova Scotia worth approximately $700,000.00, that will employ an additional 90 Canadians, and which negotiations are going to be presented to government this very month; |
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vii) achieved significant gross sales for Alosa Fisheries which gross sales, in 1997, totaled $5,994,000.00 and will pay corporate income tax valued at approximately $30,000; |
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viii) been managing Alosa Fisheries (ensuring that I did not "work" in the business as that is defined by the Immigration Act) while waiting to obtain my much anticipated permanent resident status that would permit me to "work" legally in the company. |
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[9] That information was apparently not brought out in the course of the interview in February 1998, for the visa officer, in her affidavit, after referring to the Russian companies and their two Nova Scotia corporations, states in part:
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13. ...I had earlier explained to the Applicant that complete information was required in order to assess properly the Applicant's personal history, experiences, financial background and standing. The Applicant was not very cooperative in this regard and at times refused to answer specific questions about his business activities with the abovementioned companies in Canada and Russia. When asked about his specific duties, the Applicant stated that he was "only an employee" and professed to have no knowledge about the details of the affairs of the companies. Moreover, at different times during the interview he would state either that CANSOV was doing well or not doing well financially. |
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14. ...the Applicant did not present any reference letters from his present or past employers at his February 18, 1998 interview or anytime thereafter. Moreover, the Applicant did not present any documents, either at or subsequent to his interview, which would tend to establish that he had on-going participation in a business or commercial activity in Russia or Canada. I was therefore unable to determine that the Applicant was closely involved in the business operations of those companies. |
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17. The Applicant's proposed business plan was to join an existing company, Alosa Fisheries Ltd. ("ALOSA"), as a working partner in return for an investment of CDN $15 000. The Applicant submitted documents which indicated that ALOSA was incorporated in April 1997. He also submitted documents that stated that he would be eligible to receive 33% of the net profits from ALOSA, and would be invited to work with ALOSA upon receipt of permanent residence status in Canada. |
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18. In reply to the Applicant's Affidavit at paragraphs 7, 10, 13, 15, 21, 26-29, and 46, I did not receive any documents concerning profit and loss statements, annual business income and tax evaluations, financial documents or other business reports and/or evaluations regarding the viability of the proposed business venture. |
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28. In reply to paragraphs 12-13 and 21-29 of the Applicant's Affidavit, I have reviewed the file and my case notes. The Applicant did not submit any business documents for ALOSA save and except for the Letter of Agreement, Offer and Certificate of Incorporation and Registration. Attached to this my Affidavit and marked as Exhibit "D" are true copies of the same. Attached to this my affidavit and marked as Exhibit "E" are true copies of the Computer-assisted Immigration Processing System ("C.A.I.P.S.") log which I entered into the computer at the time of my interview with the Applicant. |
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[10] Certain documents purporting to establish the applicant's assets, in particular those concerning a house in Russia, were not considered by the visa officer since she did not accept them as original documents, which the applicant had been directed to provide.
[11] The visa officer concluded that the applicant would not be able to significantly invest in or manage a commercial venture in Canada and that he was not an "entrepreneur" according to the Regulations. Her affidavit states that she denied the application and informed the applicant of her decision at the conclusion of the interview, as her CAIPS notes made at that time indicate. She states that she then explained he had not demonstrated he had the necessary abilities and that he was not an entrepreneur within the meaning of the Regulations.
[12] Subsequently the Consulate General received three letters from new counsel for the applicant, dated March 12 and 23, and April 23, 1998. These letters enclose correspondence from businessmen in Nova Scotia describing their business interrelations with and their assessment of the business abilities of the applicant and counsel described in some detail Mr. Damaskin's background and experience. In the view of the visa officer the new documents did not further the applicant's claim that he qualified as an entrepreneur. I note that some additional letters of reference from Canadian businessmen in support of Mr. Damaskin's application were received at the Consulate in New York after the visa officer had written to confirm her refusal, documents which were maintained in the records of the Consulate. Of course, none of the documents received after the letter was written are relevant here, since they were not a part of the record considered by the visa officer.
[13] The visa officer wrote on May 22, 1998, a letter received by the applicant on June 8, 1998, to advise that the application for permanent residence had been denied. It stated in part:
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I have now completed the assessment of your application and regret to inform you that you do not qualify for immigration to Canada as an Entrepreneur. |
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After a careful and thorough review of your application and of the information provided to me at the interview, and subsequent to the interview by your new representative, and also based on my evaluation and conclusions, I have determined that you are not an entrepreneur as defined in these regulations. |
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At your interview, you mentioned that you have already established a business in Canada. The documents you have presented are a job offer and a letter of agreement to join "Alosa Fisheries Ltd." as a working partner once you gain permanent resident status in Canada. Additional documents showed that in return for an investment of $15,000 in Alosa Fisheries Ltd., you will receive 33% of the net profits. I concluded that you do not have the ability to establish, purchase or make a substantial investment in a business or commercial venture in Canada that will make significant contribution to the economy and whereby employment opportunities will be created or continued for one or more Canadian citizens or permanent residents. |
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My decision is also based on the following facts: You have been working in Canada since April 1992 as Assistant General Manager for "Cansov Marine Products", you were unable or unwilling to provide any detailed information about that company. At your selection interview, you claimed that you are only an employee of Cansov Marine Products but you are not the person in charge. I am therefore, unable to conclude that you have the ability to provide active and on-going participation in the management of a business or commercial venture. You have also failed to provide the business records of Cansov Marine Products that would lead me to believe that you can succeed in establishing a business in Canada. |
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At interview, you have presented proof that you owned a house in Canada valued at CDN$ 173,000. You have also presented bank statements for a total of CDN$ 86,526.31. This is a very low amount of money with which to buy or start a business which will make a significant contribution to the economy. |
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Your application for permanent residence in Canada is refused. ... |
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[14] I note that the visa officer's letter, and her CAIPS notes made at the time of the interview, make no reference at all to the business proposal earlier submitted to or the letter of approval from, Nova Scotia government authorities, perhaps a surprising omission since that proposal was the core of his application for admission as an entrepreneur and those documents were part of the record before the officer. Moreover, from the record before me there is no evidence of communication between provincial authorities and immigration officers, though both were concerned with the program for immigration to Canada of entrepreneurs.
Issues
[15] The applicant raises a number of issues about the decision by the visa officer. These may be described under two general categories of concern, those relating to procedural fairness, and those concerning errors alleged in the assessment of the evidence by the visa officer. I deal with these in turn.
Concerns about procedural fairness
[16] For the applicant it is urged that the duty of procedural fairness owed by the visa officer was breached by her failure to advise him at the conclusion of the interview that the visa officer had a problem with his application. The applicant acknowledges that the interview did not go well and that he was very concerned when it was over, but he professes not to have known what the visa officer's concerns may have been. I note, however, that the correspondence subsequently directed to the Consulate in New York dealt mainly with the observations of others about the applicant's business abilities and he must have been aware that this was a major concern of the visa officer. Moreover, she avers by affidavit, upon which she was not cross-examined, that she did advise Mr. Damaskin at the end of the interview that his application was refused, and of her reasons for that, in particular her conclusion that he did not qualify as an entrepreneur within the Regulations. In the circumstances, I am not prepared to accept that the visa officer did not inform the applicant, as she swears in her affidavit she did, about the reasons for refusal of his application. Perhaps that advice was not fully understood by the applicant at the time, but there is no basis for any finding of unfairness arising from alleged failure to advise the applicant of concerns about his application at the conclusion of the interview.
[17] Apparently at the commencement of the interview and again more than once during the course of it, the visa officer stated that she did not have knowledge of the fishing industry. This profession by the visa officer apparently led to concern on the part of the applicant, and his wife, that the applicant might not be, and ultimately that he was not, fairly assessed. By her affidavit the visa officer acknowledges
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30. ...while I do not recall the precise words I used at the February 18, 1998 interview, I often tell prospective entrepreneur applicants that I do not know anything about their particular business unless and until they explain it to me. In that way I am better able to elicit relevant and helpful information to assist in my determination of the merits of that application in accordance with the legislation. |
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[18] For the applicant it is urged that this technique of the visa officer was unfair. Indeed, it is said to be either a dishonest tactic, though it could hardly be that unless she were knowledgeable about the industry while professing ignorance, or, on the other hand, it is said to be evidence that his application was not fairly assessed because the visa officer, as she admitted, was ignorant of the fishing industry. It is urged that a proposal by a prospective entrepreneur, particularly one who has already resided in Canada for some years, ought to be carefully considered by one who has at least a minimum knowledge of the industry in question, and, in particular, one who is knowledgeable about business practices generally. It is said by the applicant that the visa officer's questions demonstrated her lack of understanding about business generally, and the fishing industry in particular.
[19] In my view, it is not established on the basis of the affidavit evidence before me, or from the record, that there is any basis for finding procedural unfairness in the process of assessment by the officer concerned as a result of her using the technique that she did. Moreover, the Court is not in a position to assess the qualities appropriate for visa officers. The Court can only be concerned with whether those who have responsibility discharge their duties in accord with the law and in light of their reasonable treatment of the evidence before them.
[20] It seems evident the applicant was upset as a result of the interview, and perhaps in the course of it. He appears to believe that his application was not fully and fairly considered. But that belief does not establish that the process was unfair in any sense that would warrant intervention by the Court, unless the officer's consideration of the evidence before could be considered unreasonable.
Assessing of the evidence
[21] It is urged on behalf of the applicant that the visa officer erred in insisting on production of business records of Cansov. However, in my view, if one reads the reference to that omission in the letter from the officer dated May 22, 1998, it is but one of the factors which led to her conclusion that there was not sufficient evidence before her to approve his application for admission to Canada as an entrepreneur. That reference follows the paragraph in which the visa officer reviews the documents relating to Alosa Fisheries Ltd., the applicant's investment in it, and the arrangement for him to receive a share of the net profits, and concludes that that evidence did not lead to a conclusion that the applicant had the ability to establish, purchase, or make a substantial investment, in a business or a commercial venture in Canada. The discussion about Cansov then continues, with the officer's letter indicating there was a lack of any detailed information about Cansov except the most general description of its activities and that the applicant was an employee and not the person in charge. In my view, the officer's conclusion that the evidence before her about Cansov did not support a conclusion that the applicant could succeed in establishing a business in Canada, is entirely reasonable.
[22] The applicant also points to the failure of the visa officer to consider the successful operations of Alosa Fisheries. However, the evidence from the record about the applicant's involvement in that company and the measure of success it had achieved, by February 18, 1997 when the interview occurred, was minimal. The visa officer's decision was entirely reasonable, given that the documentary information the applicant provided about Alosa gave her no basis to conclude that the applicant qualified as an entrepreneur. In her affidavit she avers that she did not receive any documents of a financial or business nature or any evaluation regarding the viability of the proposed business venture. Except for the proposed plan submitted to the provincial government and approved the previous year, there was no such information in the documentary record, and the project then proposed had apparently been varied by the development of Alosa Fisheries. If the applicant wished to have his experience with that company considered by the visa officer he ought to have seen that evidence about Alosa's operations was before the officer concerned. Even in the letters subsequently submitted detailed information about the operations of that company is not provided and there is nothing in the nature of the information included in paragraph 13 of the applicant's later affidavit that was before the officer at the time of the interview or subsequently. In substantial part the officer's conclusion is supported by the applicant's affidavit which refers to the success of Alosa Fisheries as measured primarily after the interview. At the time of the interview, the company had not completed its first year of operations and measures of its success, if available at all, would have given a preliminary indication only, but no documentary evidence of this was provided at the interview.
[23] Finally, it is urged that the officer failed to properly assess the applicant's assets available for establishment of a business in Canada. In particular, the officer took no account of the evidence before her about the value of real property owned by the applicant in Russia and evidence that it could be purchased for a particular price by an intended purchaser. Even if the officer can be said to have erred in failing to take account of this evidence, that in itself is not sufficient reason to here intervene. The officer's concern was not solely with the assets available to the applicant, rather she was concerned with evidence, which she found lacking, about his experience in business. The lack of such evidence, of success in business, led the officer to conclude that the applicant was not qualified as an entrepreneur.
[24] In my opinion, on the basis of the evidence before the officer at the time of the interview, and the evidence subsequently received by letter received before her decision letter was written, the decision confirmed in that letter was not unreasonable. That decision is one that lies within the discretion of the visa officer and there is no evidence of bad faith, of unfairness or of reliance upon irrelevant evidence or considerations, and the Court has no basis to intervene (see: [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Government of Canada et al., [1982] 2 S.C.R. 2 at 7-8), even if the Court were to assess that evidence differently.
Conclusion
[25] I note that it was urged at the hearing that in light, cumulatively, of all of the alleged errors by the visa officer in consideration of the applicant's application, the decision must be seen to be patently unreasonable. It is apparent from my Reasons that I do not agree with this assessment.
[26] Having reached that conclusion, an Order will issue to dismiss the application for judicial review.
[27] That said, if the applicant and his advisers believe that they have evidence that would warrant a different decision on another application for admission as an entrepreneur, it may well be that another application is warranted and might be approved. I note that the applicant's record contains a second affidavit of the applicant sworn October 9, 1998, with schedules attached which were intended to convey more information, including financial records of Alosa Fisheries, none of which was before the visa officer in February, 1998. That affidavit, and its appended schedules, were struck out by Order of Madam Justice McGillis. Whether a further application, for admission to Canada as an entrepreneur and a permanent resident, is possible or warranted is, of course, a matter for the applicant to consider. It is not one, in the circumstances of this case, for the Court to direct.
[28] Under Rule 18 of the Federal Court Immigration Rules,1993 judgment in respect of an application for judicial review is not to be rendered "without first giving the parties an opportunity to make a request that the judge certify that a serious question of general importance as contemplated by section 83 of the Act is involved". When this application was heard neither counsel nor the Court raised this matter.
[29] I now direct that counsel consult and if they agree, either that there is any question to be considered for certification, or that there is not, they shall advise the Court, if possible on or before July 21, 1999. If they do not agree and one of the parties proposes a question for certification and the other does not support that, counsel are directed to provide their separate written advice to the Court about the proposed question, if possible on or before July 21, 1999. Thereafter, an Order will issue dismissing this application and certifying any proposed "serious question of general importance" which this Court also considers is raised by the facts or by the disposition of this application.
W. Andrew MacKay
JUDGE
OTTAWA, Ontario
July 2, 1999.
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