Date: 19971218
Docket: IMM-869-97
BETWEEN:
MOHAMMAD TAHIR PARACHA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.
[1] These reasons arise out of an application for judicial review of a decision of a Designated Immigration Officer (the "visa officer") at the Canadian Consulate General in New York wherein the visa officer determined that the applicant did not meet the requirements for permanent residence in Canada. The visa officer's decision is dated the 16th of January, 1997.
[2] The applicant was born in Pakistan in August of 1958. At the time when he applied for permanent residence in Canada, he had resided in the United States for some ten years. He had some seventeen years experience in the ownership and operation of small-scale retail businesses in both Pakistan and the United States, in which he had employed others. He applied for permanent residence in Canada in the entrepreneur category. He proposed to open a grocery store in which he anticipated he would invest approximately $40,000.
[3] "Entrepreneur" is defined in subsection 2(1) of the Immigration Regulations, 19781 in the following terms:
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"entrepreneur" means 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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[4] In the decision letter that is under review, after quoting the foregoing definition, the visa officer wrote:
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After a careful and thorough review of your application, I have determined that you are not an entrepreneur as defined in those regulations. Following your personal interview, held at our office on January 8, 1997, I feel that your business project is not very clear or detailed. You failed to demonstrate that you will settle in Canada successfully. Furthermore, your initial investment of approximate [sic] $40,000 does not constitute a "substantial investment" in my mind. I do not consider that you business venture would make a "significant contribution to the economy" of Canada. A letter from your bank indicates that you have US$38,591.59. You indicate that your 2 businesses in the United States are worth US$175,000. Your income tax returns indicate that in [sic] your total earnings for [sic] your business in 1992 was $21,170, in 1993 $18,795, in 1994 $20,021 and in 1995 $23,120. This does not show that you are a successful businessman. Finally, your project of opening a grocery store, in my opinion, is of no significant contribution to the economy of Canada. It is not apparent to me from the material available to me that there is a demand for these services which is not being met in the Canadian marketplace already. Your business would simply add one more business supplying a demand which is already being served. You were unable to identify any factor which would enable me to conclude that you would make a significant contribution to the economy of Canada nor provide employment opportunities for residents of Canada. |
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You indicated in your interview that you plan to open a grocery store in Canada, that you plan to bring to Canada $40,000 for this business venture and that later you will sell your 2 businesses in the United States and bring these funds to Canada. |
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I am not convinced that you have the ability to establish a successful business venture in Canada. Furthermore, I do not believe that with $40,000, you can open a business in Canada, provide jobs for at least one person, and at the same time support your wife, who is a housewife, and your 3 children. You are not an entrepreneur as defined in the Canadian Immigration Regulations. |
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[5] The standard of review of decisions such as that of the visa officer here, is well settled. In Boulis v. The Minister of Manpower and Immigration2, Mr. Justice Abbott quoted from earlier authorities at page 877 to the following effect:
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The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise. |
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More recent authority to the same effect in respect of a visa officer's decision in relation to an "entrepreneur" category applicant can be found in To v. Canada (M.E.I.)3.
[6] The only ground of review argued before me was to the effect that the applicant had been denied fairness when the visa officer allegedly failed to put her concerns with respect to the applicant's case to the applicant during the course of his interview with the visa officer and to provide a reasonable opportunity to respond those concerns. The versions of what transpired at the interview that are set out in the affidavit of the applicant and the affidavit of the visa officer are dramatically different. The applicant attests that he was under the impression during the interview that the visa officer would approve his application if he could provide an up-to-date bank statement and an appraisal of his properties in the United States and Pakistan. By contrast, the visa officer attests that, at the interview, she fully explained her concerns to the applicant, and thus provided him an opportunity to respond to them and that, in the absence of what she considered to be a satisfactory response, she advised him that his application was refused and of the reasons for the refusal.
[7] I prefer the version of what transpired at the applicant's interview with the visa officer provided by the visa officer. That version is supported by notes of the interview. No equivalent support is provided for the version of events attested to by the applicant.
[8] In the result, this application for judicial review is dismissed. Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
Judge
Toronto, Ontario
December 18, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-869-97
| STYLE OF CAUSE: MOHAMMAD TAHIR PARACHA |
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: DECEMBER 17, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: GIBSON, J.
DATED: DECEMBER 18, 1997
APPEARANCES:
Mr. Joseph S. Farkas
For the Applicant
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD:
Joseph S. Farkas
3089 Bathurst Street
Toronto, Ontario
M6A 2A4
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19971218
Docket: IMM-869-97
BETWEEN:
MOHAMMAD TAHIR PARACHA
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 S.O.R./78-172
2 [1974] S.C.R. 875">[1974] S.C.R. 875
3 [1996] F.C.J. 696 (C.A.) (not cited before me).
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