Date: 19971112
Docket: IMM-784-97
BETWEEN:
DORAISAMY PILLAI SELLADORAI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS
(delivered orally from the bench in Toronto, Ontario on October 22, 1997)
MULDOON, J.
[1] HIS LORDSHIP: This is an application for a judicial review of a visa officer's decision denying the applicant an immigrant visa because, according to her, he did not meet the definition of a "self-employed person". The decision was communicated to the applicant on January 24th, 1997 by letter which was dated January 14th, 1997. The applicant filed his originating notice of motion on February 24th, 1997.
[2] The visa officer signed her letter of decision from the High Commission in Colombo, file B034019355, in her capacity as second secretary.
[3] The applicant bases his application to quash that decision on judicial review on the following grounds, and this is taken from the originating notice of motion:
| "...A. the decision of the Respondent constituted an error in law, |
| B. the Respondent fettered its [sic] decision by misconstruing the definition of 'Self-Employed Applicant' thereby erroneously concluding that the applicant had insufficient experience to make a significant contribution to the economy of Canada, and |
| C. the decision of the Respondent was based on erroneous findings of fact made in a perverse or capricious manner..." |
In his submissions, the applicant states that the visa officer erred by misinterpreting the category of "self-employed persons" as defined by s.2(1) of the Immigration Act Regulations, by focusing on the profitability of the applicant's current business enterprise instead of his business experience and his potential business in Canada. The applicant further submits that the visa officer's interpretation of this definition and her resulting decision in the applicant's case constitutes a breach of Canadian Immigration policy objectives, namely the fostering of development of the economy and increased access to foreign markets.
[4] In her reasons, the visa officer indicated that the applicant gave mixed signals as to the operation of his two businesses. He made a number of confusing and contradictory misstatements which led to the apprehension on the part of the visa officer that the applicant either did not know his businesses very well, or that he was purposely offering misleading information. In her affidavit, the visa officer states that she further tried to clarify the information concerning the applicant's business. At paragraph 8 of her affidavit, which was referred to by both counsel at this hearing, she states:
| "...I was concerned that Mr. Selldurai's [sic] business showed a loss; Mr. Selladurai said that this was for taxation purposes only. He pulled out a trial balance sheet which showed a profit of Rs. 58,561; however later on in the interview he stated that there was a loss in 1996 because he had purchased a lorry during 1995. I asked him to show me the information concerning the purchase of the lorry on his financial papers. Mr. Selladurai showed a reference to a 'rent lease'. When I queried this, Mr. Selladurai indicated that the lorry was not purchased but an eighth of it was rented. It was my opinion based on his answers to my questions that Mr. Selladurai was either not as [sic] knowledgeable about his business as he claimed or he was attempting to provide misleading answers. I questioned further about the section of the financial report dealing with losses, particularly about the reference to 'financial'. Mr. Selladurai indicated that this was a credit overdraft from the bank, the interest on which was over Rs. 700,000. He further indicated that he thought that he might sell 'Quality Steel' in order to pay off his debts to the bank..." |
When the visa officer questioned the applicant about a business plan for Canada, the applicant offered the visa officer a brochure from a consulting company, Ace Centre, which would help him set up his business. The applicant could not personally provide the visa officer with any type of business plan information which would have indicated that, or plan of action which would have indicated that, at the very least, the applicant had conducted some research into his Canadian venture. From this, the visa officer concluded that the applicant "had not done any research into possible Canadian competition for [his] proposed business." That is in the letter to the applicant dated January 14, 1997, the decision. There is nothing on file which would indicate that the visa officer erred in this respect. The applicant was unable, by his own admission, to provide anything concrete on market and business research other than the pamphlet from a consulting company. A copy of the pamphlet itself was attached to the applicant's affidavit in support of the applicant's motion, as Exhibit B. Any insight into Canadian business or market conditions evinced in this pamphlet, and there is not much, proceeds from its authors, not from the applicant or his experience. He cannot improve his own position by tendering a consultant's pamphlet.
[5] Here, one might be concerned with paragraph 9 of the visa officer's affidavit, page 2 of the respondent's record:
| "...I asked Mr. Selladurai about his business plans for Canada. Mr. Selladurai indicated that he wanted to set up a business buying the products of steel mills. Mr. Selladurai stated that he would buy from large mills such as 'Cooper Niles' but Mr. Selladurai did not know where this company was located or exactly what it produced. He could provide no documentation concerning his plans. Mr. Selladurai did indicate that he might enlist the support of a friend or a business service to assist him in establishing a business but he himself appeared to have done no research into what problems he might face in establishing his business. Mr. Selladurai was further not aware of how the products of steel mills are usually marketed in Canada. He did not appear to know about the existence of hardware stores in Canada or of any other competition he might face in his intended business..." |
From this, one may conclude that it was futile to ask Mr. Selladurai if he knew of the disparity between wages for labour in this country and in Sri Lanka and that, of course, would have much to do with profitability, but his company was not markedly profitable, if at all, even in Sri Lanka with, probably, lower wage rates.
[6] The procedures for selecting "self-employed persons" as immigrants are set out in the Immigration Canada manual, Chapter OP6, "Processing Entrepreneurs and Self-Employed Immigrants". The Court is very apprehensive about making much or any use of this pamphlet because if anything might be said to fetter the discretion given to visa officers by the regulations under the statute, this sort of pamphlet would be that. In any event, Section 5.2, Selection Criteria of the chapter addressed to visa officers reads in part:
| "...If you are satisfied that an applicant meets the definition of a self-employed person, the applicant is assessed on a modified version of the point system. Eight of the nine factors in the selection criteria set out in Schedule I of the Regulations are assessed... |
| Pursuant to R11(3) [s.11(3) of the Immigration Act Regulations] you may issue or refuse an immigrant visa regardless of the units of assessment if, in your opinion, there are good reasons why the units of assessment awarded do not reflect the chances of the immigrant and his or her dependants becoming successfully established in Canada, in the economic sense..." |
It is apparent from these guidelines, which may indeed fetter visa officers' discretion, that a certain amount of discretion is given to the visa officers when making their decisions. However, as has been stated, the visa officer must be satisfied that the applicant meets the "self-employed person" definition before that applicant is assessed under the modified point system. The visa officer was not satisfied that the applicant met the definition, and her reasons are adequately supported by the material which was before her and of her recollection of the interview of the applicant. It was incumbent upon the visa officer to determine whether or not the applicant would likely set up a successful business in Canada. Considering the applicant's business debt, unstable revenues and vague responses with regard to his business, the visa officer pursued the area of potential business in Canada and that is indicative that she gave the applicant every opportunity to better his position. His weak business record, his large business debt and his lack of research and knowledge of the Canadian markets lead to one inevitable conclusion. In these circumstances, it would seem that the decision is abundantly reasonable. Unfortunately for the applicant, he has been unable to provide any evidence which would constitute an error on the part of the visa officer, in the Court's opinion.
[7] The courts have generally held that an applicant must show that a visa officer either acted in bad faith or based a decision on irrelevant considerations in order for that decision to be quashed on judicial review.
[8] It must be noted that paragraph 3(h) of the Act does not provide that notwithstanding the visa officer's misgivings, an applicant shall be accorded landing. Only today at the hearing did the applicant's counsel, but not Mr. Selladurai himself, never himself, assert that his command of English was so poor that he could not understand the visa officer.
[9] The Federal Court of Appeal decided in To v. Canada, that is the one referred to by counsel for the Respondent, A-172-93 (May 22, 1996), a matter concerning a visa officer decision involving an "entrepreneur" class applicant, that considerable deference should be given to decision makers, such as visa officers, with statutory discretion. One might also note Kuo-Ting v. Minister of Citizenship and Immigration, IMM-1345-96 (May 7, 1997), and Tsai v. Minister of Citizenship and Immigration, IMM-3079-96 (October 2, 1997), it is very recent. Mr. Justice Stone, writing for the Court, stated:
| "...Here, the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In Maple Lodge Farms Limited v. Government of Canada et al, [1982] 2 S.C.R. 2">[1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court: |
| 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 responsibility. 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..." |
[10] The applicant and his family seem to be perfectly acceptable personally, even although the applicant did not meet the "self-employed" criteria. The visa officer did not err in exercising her statutory discretion and, therefore, her decision is not to be quashed. For these reasons, the application for judicial review is dismissed.
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