Date: 19991018
Docket: IMM-423-98
OTTAWA, Ontario, this 18th day of October, 1999.
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
VITALI BORISOVICH MALKINE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
UPON application by the applicant for judicial review of, and an order setting aside, the decision of a visa officer at the Canadian Consulate General in Detroit, by letter dated December 16, 1997, which denied the business immigration application, in the entrepreneur category, of the applicant;
UPON hearing counsel for the applicant and for the respondent in Toronto on August 16, 1999, when decision was reserved and upon consideration of submissions then made;
ORDER
IT IS ORDERED that the application is allowed, the decision of the visa officer dated December 16, 1997 is set aside and the applicant's application for immigration in the entrepreneur category is remitted for redetermination by a different visa officer.
W. Andrew MacKay
JUDGE
Date: 19991018
Docket: IMM-423-98
BETWEEN:
VITALI BORISOVICH MALKINE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks judicial review of a visa officer's decision, rendered on December 16, 1997, refusing Mr. Malkine's application for permanent residence as an entrepreneur. The application seeks an order quashing the visa officer's decision and an order in the nature of mandamus directing the respondent to process the applicant's application, or in the alternative referring the matter to a different visa officer for redetermination.
Background
[2] On August 26, 1994 the applicant's solicitor submitted on the applicant's behalf an application for permanent residence in Canada, in the entrepreneurial category, to the Canadian Consulate General in Buffalo, New York. The application was transferred to the Canadian Consulate General in Detroit early in 1995 and the applicant attended an interview with a visa officer at the Detroit Consulate on June 12, 1995.
[3] The visa officer explained that the applicant would have to meet the "entrepreneur" definition and discussed the definition with the applicant. Mr. Malkine presented himself to the visa officer as an experienced businessman. By his affidavit, he avers that he is a shareholder and officer, and is involved in the day to day responsibilities for operations of three companies, all based in Moscow. These include Rossinski Kredit Bank, of which he is Chairman and the holder of 21 per cent of the shares, Agro-Service, which is a banking and financial corporation in which he owns nearly half the shares, and Triada-1, a trading, investing and brokerage corporation. The officer noted that Mr. Malkine had substantial holdings in Hong Kong, Israel, the United States and Russia.
[4] The applicant had stated in his application documents that he planned to establish a merchant banking operation in Canada. The parties agree that at this interview he discussed with the visa officer the difficulties that he would face if he attempted to establish a merchant banking operation in Canada. The visa officer says that at the interview the applicant expressed a desire to become involved in property investment. Mr. Malkine noted that he had already purchased two buildings in Toronto and was negotiating a deal for a third building. The visa officer asked that he provide evidence of his business dealings in Canada, and offered to give him time to gather the necessary documentation. The applicant states that at the interview they discussed another of his plans, to establish a merchant trade operation in Canada to purchase goods for export to Russia.
[5] The visa officer, by her affidavit, states that during the interview she expressed some concern that the applicant would not be able to settle permanently in Canada since he planned to continue to actively operate his foreign businesses. The applicant claims that he was not notified of this concern. He says that he noted at the interview that he has a son in Canada with whom he desired to spend more time, and that his businesses in Russia could be co-ordinated without having to be there physically, enabling him to spend the necessary time in Canada overseeing his business here.
[6] Following the interview, the visa officer wrote on June 14, 1995 requesting documents to support Mr. Malkine's qualifications in meeting the entrepreneur definition. Mr. Young, the applicant's counsel, responded by a letter dated November 1, 1995 which described the applicant's business plan, but which did not attach the requested documentation.
[7] The visa officer's CAIPS notes document that on February 2, 1996, CSIS notified her of its intention to conduct an interview with the applicant. That interview ultimately took place on September 12, 1996. Attached to the applicant's affidavit is a letter from Mr. Young to the applicant which indicates that the visa officer advised Mr. Young that his application had been approved subject to the interview, but the visa officer denies that she had given that advice.
[8] Before rendering her final decision, for some time the visa officer "awaited results of information that would be obtained through background checks", which she believed would assist in her final determination. When Mr. Young periodically enquired about progress, he was advised that the visa officer continued to await receipt of background checks that were outstanding. That process of enquiries by the applicant's counsel and response by the visa officer includes some ten letters exchanged over a period from June 1995 to December 1997. In that exchange, the only reason for delay in dealing with the application to which the officer referred was the outstanding report, apparently from CSIS.
[9] Eventually the visa officer decided that the applicant did not meet the definition of entrepreneur, based on the evidence on file and without waiting further for a report from CSIS on its background checks. She forwarded a letter dated December 16, 1997 confirming that opinion. It set out the definition of "entrepreneur" from the Immigration Regulations, 1978,1 and stated that:
| In my opinion you have failed to meet the above definition. You were unable to satisfy me that you intend to establish or purchase or make a substantial investment in a business or commercial venture in Canada. You have failed to satisfy me that you will make a significant contribution to the economy and that employment opportunities will be created or continued. You have also failed to satisfy me that you have the intention and ability to provide active and ongoing participation in a business in Canada. |
| At your personal interview on June 12, 1995 I advised you of my concerns regarding your application. You were asked at interview to address my concerns by providing supporting documentation. You were sent correspondence dated 14 June 1995 and specifically asked to provide supporting documentation that would address how you meet the definition of entrepreneur. You were asked to provide evidence of property investment in the Toronto area, supporting documentation of how your business plans will make a significant contribution to the economy and create employment opportunities and what your specific role will be. |
| A letter was received from your legal representative, Joseph R. Young, dated November 1, 1995. The letter reiterated that you are a 21% owner of the 8th largest bank in Moscow, that you have substantial personal net worth and that you have the ability to establish a business in Canada. It was stated that you intended to establish a "merchant banking operation" in Canada whereby you will set up a Canadian corporation that will be responsible for purchasing and exporting various products including computer hardware, software, furniture and equipment on behalf of many different corporations from the former Soviet Union. |
| To date we have not received evidence of the property investment in Canada that was discussed at interview. You have provided evidence of your business experience in Russia but have failed to provide evidence that would lead me to believe you have the intention of establishing business in Canada. As a part owner of a large financial institution and being involved with extensive holdings in Hong Kong, Israel, Russia and the U.S., I am unable to conclude that realistically you will be able to permanently reside in Canada and provide active and ongoing participation in a business in Canada. |
| As a result of information obtained at the interview and on file, it is my opinion that you do not have the intention to establish a business in Canada. You have also failed to satisfy me that you will make a significant contribution to Canada and that you have the ability to actively operate a business in Canada. |
| You therefore come within the inadmissable [sic] class of persons described in paragraph 19(2)(d) of the Immigration Act, 1976, and your application has been refused. |
[10] In January 1998 Mr. Young contacted the visa officer to ask whether he could send documentation that he thought had been forwarded previously but was apparently not received by the visa officer. Thereafter counsel wrote and forwarded documents pertaining to the purchase of a condominium building in North York by an Ontario corporation of which Mr. Malkine was a director and president, and documentation of the purchase of US$300,000 of Canadian products for export to Russia by one of his Russian companies. The visa officer reviewed the matter on the basis of this further evidence. Then she replied by letter dated January 28, 1998, which stated in part:
| I have thoroughly reviewed Mr. Malkine's file and the information you have recently submitted on his behalf. Unfortunately I am unable to alter my original decision in this case. |
| You have presented copies of the Articles of Incorporation for 1069180 Ontario Limited. Mr. Malkine is listed on Schedule A as being vice president, appointed in September 1994. You have also presented evidence of property purchased by the limited company, realty tax roll, leasehold improvement invoices, letter of intention regarding The Sports Clubs of Canada and a brochure on 18 Wynford Drive, North York. The items you have submitted do not indicate that Mr. Malkine has been actively involved in business in Canada or that he has the intention and ability to provide active and on-going participation in the management of a business or commercial venture. You have not provided any evidence that Mr. Malkine has financial interest in the Ontario limited company. You have also not provided evidence that Mr. Malkine has been actively involved in any decision making aspects or management of the company. |
Issues
[11] The basic issue is whether the applicant has demonstrated that the visa officer committed a reviewable error of law while refusing the application. Specific issues raised by the applicant are as follows:
| 1. Did the visa officer err in her interpretation of the "entrepreneur" definition? |
| 2. Did the visa officer erroneously rely on extrinsic evidence? |
| 3. Did the visa officer fail in her duty of fairness by failing to notify the applicant, more than once, that she required further information from him? |
| 4. Is the respondent's delay in producing the certified record a reason to overturn the visa officer's decision? |
| 5. Did the visa officer err by failing to complete a point score assessment and failing to assess the applicant's personal suitability? |
| 6. Did the visa officer err by altering the certified tribunal record? |
| [12] I deal with the first three of these specific issues in some detail and then briefly with the last three since, in my view, those latter issues are not a basis for intervention by the Court in this case. |
| [13] The respondent urges that the Court should accord a high standard of review in this judicial review application, and relies on Maple Lodge Farms Ltd. v. Canada.2 It also reminds the Court that subsection 8(1) of the Immigration Act3 (the "Act") puts the onus upon an applicant to prove that he or she has a right to enter Canada or that his or her admission would not contravene the Act or its regulations. |
| The Definition of "Entrepreneur" |
| [14] The Immigration Regulations, 19784 define an "entrepreneur" to mean 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
|
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) who intends and has the ability to provide active and on-going participation in the management of the business or commercial venture;
|
b) qui a l'intention et est en mesure de participer activement et régulièrement à la gestion de cette entreprise ou de ce commerce;
|
| [15] The applicant urges that the visa officer, during cross-examination on her affidavit, did not agree that the definition of entrepreneur in the Act "... is future thinking, forward thinking, concerned with the applicant's ability and intention to establish a business or commercial venture ... and ... ability to manage it ... after they arrive in Canada." Rather, she stated that those seeking visas in the entrepreneur category receive a visa on the condition that they do establish a business in Canada or purchase or invest in a business in Canada and participate actively in that business. The applicant says that the officer stated that the prospective entrepreneur must meet the above condition prior to his or her arrival, and it is argued that instead, the definition depends in large part upon meeting the condition after an individual lands in Canada. However, it seems to me to be clear from the transcript of the cross-examination that the officer stated that an individual must meet the conditions "two years from landing". Moreover, in my opinion the officer's decision letter indicates that the basis of the officer's refusal was that she was not persuaded that he intended or had the ability to be actively involved, in accord with the definition of "entrepreneur", in a Canadian business venture in the future. |
| [16] It is also urged that the visa officer erred in concluding that the applicant did not intend to establish a business in Canada. The applicant disputes the basis for this decision, urging it was not supportable by reference, as the officer did, to the fact that the applicant had extensive business holdings elsewhere, or the lack of evidence (other than representations by him and his counsel) of his active involvement in a Canadian company claimed to have been established before his interview, and his Israeli citizenship. |
| [17] In regard to his claim of establishing a business in Canada, it is notable that the applicant himself mentioned his prior business dealings in this country to demonstrate his interest in an active commercial operation here. In my view it was not unreasonable for the officer to consider Mr. Malkine's claimed past business activity in Canada as a factor in assessing his intentions for the future. Chen v. Canada (Minister of Employment and Immigration),5 on which the applicant relies, is not directly applicable to the case at bar, for it was concerned with the "investor" category under the Act rather than that of the "entrepreneur". |
| [18] In my view, it was not unreasonable for the visa officer to consider the applicant's business activities abroad. That may be relevant to the ability of the applicant to establish a business in Canada, but, it seems to me, it is a neutral factor in assessing intent. Business investment in other countries, and Israeli citizenship for that matter, may suggest that the applicant might not concentrate his business efforts and financial investment in Canada, but a prospective entrepreneur is not required to concentrate his interests here to any extent other than to demonstrate ability to establish and to play an active role in a business in this country. Requiring evidence of the applicant's claimed involvement in a Canadian company, another matter raised by the applicant himself, on the other hand, was reasonable, and relevant both for assessing his intent and his ability to establish a business here. It is notable that despite the officer's request for such evidence at the time of the interview, the only information provided thereafter was correspondence from the applicant's counsel with representations but without supporting evidence until after the officer's original negative decision. |
| [19] The applicant claims that the following exchange at the cross-examination demonstrates an error on the officer's part in assessing his ability to actively manage a business in Canada: |
| Q. So, in your opinion did Mr. Malkine have the ability to establish a business in Canada? |
| A. I believe he had ability to establish a business in Canada based on his previous business experience. My referral to his ability -- his refusal on the definition of entrepreneur was on intention. And someone -- you can relate intention to ability and the fact that I found it unrealistic to expect that he would have the ability to be a full participant managing a business in Canada based on what he had already been involved in his businesses. The amount of time it would take. |
| [20] The applicant disputes the idea that he could not fully participate in business in Canada because of his involvement in other businesses elsewhere. An "entrepreneur" must intend and be able to provide "active and on-going participation in the management of the business venture". The visa officer"s conclusion that Mr. Malkine would spend less time on a Canadian business venture because of his extensive involvement with businesses abroad may be sensible, but in my view that does not support a conclusion that he did not have the intention or ability to provide "active and ongoing participation in the management of the business" in Canada. |
| [21] The necessary measure of involvement in a business in Canada is not defined in the Act. It is to be "active and ongoing". Here the visa officer related that to her assessment of the applicant's ability to "permanently reside in Canada". In doing so, it is urged she erred, and has, in effect, imposed a residence requirement that is not within the "entrepreneur" definition under the Act . |
| [22] In my opinion, the visa officer did err in considering, in relation to the applicant's ability to provide active and ongoing participation in a business in Canada, her own assessment that he would not be able to permanently reside in Canada. The Act does not require that he permanently reside here. At that stage he was not admitted as a permanent resident,6 and he was not applying for citizenship. Furthermore, Mr. Malkine did state during his interview that he would like to permanently reside in Canada, a desire that was relevant to his admission as an entrepreneur even if it was given little or no weight by the officer in the exercise of her discretion. |
| [23] Next the applicant argues that the following quote from the officer's CAIPS notes suggests that the visa officer fettered her discretion and violated the duty of fairness owed to the applicant since the officer did not disclose a matter which was considered by the officer. Those notes included an entry, as follows: |
| RESULT OF BACKGROUND CHECKS INDICATE TREND AMONG RUSSIAN BANKERS TO SEEK RESIDENCY/CITIZENSHIP IN CDA OF CONVENIENCE.7 |
| [24] The respondent argues that the evidence concerning a trend among Russian bankers was not extrinsic evidence of the kind that the visa officer had a duty to put before Mr. Malkine. In Amoateng v. Canada (Minister of Citizenship and Immigration),8 Justice McKeown followed Shah v. Canada (Minister of Employment and Immigration)9 and held that reliance upon extrinsic evidence, without advising the applicant and without permitting comment on it, violated the duty of fairness. The respondent relies upon Chiu v. Canada (Minister of Citizenship and Immigration).10 In my opinion, Chiu is distinguishable in that there the officer undertook independent research and relied upon the results of that without prior advice to the applicant. Madame Justice Simpson found in the circumstances there was no breach of the duty of fairness since the research there related to a matter discussed at the applicant's interview and the results simply confirmed the understanding there reached. |
| [25] In my opinion, the facts in the case at bar are comparable to the circumstances in Amoateng. While here, the visa officer did not, in her December 16, 1997 letter, mention consideration of the reported trend among Russian bankers generally as a reason for denying Mr. Malkine's application, it appears from her CAIPS notes to have been a consideration, among others, in her decision. Since it was a concern not discussed with the applicant at his interview or later, before the decision, in my view, the officer failed in her duty of fairness. |
| [26] The applicant also argues that the visa officer violated the duty of fairness by failing to inform the applicant or his solicitor, other than on June 14, 1995, that she required further documentation and information. Despite the exchange of "over thirteen pieces of correspondence" between counsel for the Applicant and the visa officer from June 1995 to December 1997. Of course, there is no legislation requiring the visa officer to pursue applicants to ensure that they provide requested information, and failure to repeat a request for information would not breach a duty of fairness in the usual case. Yet, in my view, the circumstances here were unusual. Counsel for the applicant had submitted the original application for Mr. Malkine, he wrote on behalf of his client following the interview and then made representations about Mr. Malkine's business background. The officer did not respond by indicating she was still awaiting evidence of that background. Rather, in correspondence throughout the two and a half years after the interview, while the applicant awaited a decision, the only matter referred to by the officer as required before she made a decision was information from CSIS, information that apparently was not received before the decision was made. In the unusual circumstances of this case, failure to advise the applicant or his counsel that she was still expecting evidence of the former's business experience constituted a failure in the visa officer"s duty of fairness owed to the applicant. |
| [27] The applicant submits that the respondent delayed unfairly in producing the certified tribunal record. This does not constitute a reviewable error, in my opinion. That failure was dealt with by Prothonotary Giles' order for the production of the applicant's file within ten days and for the amendment of the schedule for completion of application records in this proceeding, to accord with his direction. |
| [28] The applicant further argues that the visa officer erred by failing to complete a point score assessment and by failing to assess personal suitability prior to determining whether the applicant was eligible for a visa as an "entrepreneur". Paragraph 8(1)(c) of the Immigration Regulations, 1978 provides that a visa officer must assess a prospective immigrant "... in the case of an entrepreneur ... on the basis of each of the factors listed in column I of Schedule I, other than the factors set out in items 4 and 5 thereof." Any failure in this regard arises only after the visa officer determines that an applicant for admission as an entrepreneur meets the definition for that category, a step not yet reached in this case. |
| [29] Finally, the applicant claims that the visa officer violated the duty of fairness and rules of natural justice by altering the certified record, which was forwarded to the Federal Court on April 30, 1998. Included at page 37 of the certified record was an e-mail message which suggests that Mr. Malkine had forwarded information to the visa officer, and that the respondent neglected to record the receipt of this in her CAIPS notes. There is a hand-written note on the corner of the e-mail which states: |
| "13/10/97 Spoke w HMS regarding this -- only thing submitted was lawyer's letter no supporting docs will review." |
| [30] The applicant urges that this notation did not appear on the same document received by him in response to his access to information request. When cross-examined, the visa officer explained that she had added the notation in January or February of 1998 before she swore her affidavit but after the access to information request had been answered. Apparently she dated the notation to accord with the date that she spoke with the author of the e-mail message to inform him that he had confused Mr. Malkine's file with that of another Russian banker with a similar name who had forwarded requested documentation. Despite knowing that she should not have altered the record, she decided to add the notation to ensure that the author of the e-mail recalled that this had in fact occurred. She admitted in cross-examination on her affidavit that she should not have added the notation to the certified record. In my view, the timing and this entry on the record after the officer's refusal decision adds to concern about the fairness of the process followed in this case. The entry introduces a measure of confusion in the record about when documentary evidence sent by the applicant was first received by the consulate, though it apparently was considered only after the officer's original decision to refuse the application, in December 1997. |
| [31] In my opinion, the record in this case demonstrates error that warrants the intervention of the Court. The visa officer erred in determining that the applicant did not qualify under the definition of an "entrepreneur" in part by reliance upon her conclusion that he did not demonstrate ability "to permanently reside in Canada". She erred further, in her duty of fairness, by failing to inform the applicant, and permit response from him before deciding on his application, of her concern about a reported trend among Russian bankers to seek residence in Canada "of convenience". In the circumstances of this case, there was a similar failure by not advising the applicant or his counsel of the officer's continuing expectation, that more evidence was to be provided about the applicant's business experience, through 2 " years of waiting, which delay was said at the time to be only for other information from background checks about the applicant. |
| [32] In the circumstances, the application is allowed and an order goes setting aside the decision of the visa officer and referring the matter back for reconsideration by a different officer. That order goes, with costs to the applicant on the usual party and party basis. |
| [33] No question was proposed for certification pursuant to subsection 83(1) for consideration by the Court of Appeal and no question is certified. |
__________________
1 SOR/78-172, s. 2(1) as amended.
2 [1982] 2 S.C.R. 2">[1982] 2 S.C.R. 2.
3 R.S.C. 1985, c. I-2 as amended.
4 Supra, note 1.
5 [1993] F.C.J. No. 582, 20 Imm. L.R. (2d) 290 (T.D.)
6 The status of permanent resident, as defined in the Act, means one who has been granted landing, has not become a Canadian citizen and has not ceased to be a permanent resident by leaving or remaining outside Canada with intent to abandon the country as the place of permanent residence, an abandonment that may be deemed by remaining outside Canada for 183 days in any 12 month period. See the Act, supra note 3, ss. 2 and 24.
7 The applicant obtained copies of the notes through an access to information request. It is notable that the documents submitted to the Registry by the Canadian Consulate do not include this sentence. The Consulate explained to the Registry that it deleted some text within the submitted documents. There is no marking to suggest that this entry was crossed out. Instead, it seems as though it was deleted altogether from the notes. A tribunal forwarding a record that was before the decision maker has a duty to forward the entire record.
8 (1994), 26 Imm. L.R. (2d) 317, [1994] F.C.J. No. 2000 (T.D.).
9 (1994), 170 N.R. 238, [1994] F.C.J. No. 1299 (C.A.).
10 (1996), 35 Imm. L.R. (2d) 281, [1996] F.C.J. No. 1460 (T.D.).
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