Zaya v. Canada (Minister of Citizenship and Immigration), docket IMM-3250-96

     IMM-3250-96

B E T W E E N:

     YOUSIF ZAYA

     Applicant

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

HEALD, D.J.:

    

     This is an application for judicial review of a decision dated July 30, 1996 by Visa Officer Francine Milo at the Canadian Embassy in Damascus, Syria. By that decision, Officer Milo denied the applicant's application for permanent residence in Canada.

     The applicant was interviewed on July 21, 1996. The basis for refusal was pursuant to section 19(2) of the Immigration Act in that the visa officer concluded that the applicant was unable to meet the definition of "entrepreneur" as set out in subsection 2(1) of the Immigration Regulations. The visa officer stated¹: "... you were unable to convince me that you have the ability to establish a viable business venture in Canada. You have not been able to provide documentary evidence of a successful track record as an entrepreneur. You have never visited Canada, you are unfamiliar with Canadian business practices and the Canadian business environment ..."

     In an affidavit sworn on November 24, 1996, the visa officer identified a number of concerns: the applicant's lack of English proficiency, his poor suitability (lack of initiative, resourcefulness, unsubstantiated motivation), conflicting and unclear statements regarding the role of his brother, lack of evidence regarding the successful operationof his present business, and the lack of transparency².

Analysis

     I have concluded that this application cannot succeed. At issue here is the exercise of a discretion by a statutory authority. In Maple Lodge Farms Limited v. Government of Canada et al.³, Mr. Justice McIntyre speaking for the Supreme Court of Canada stated:

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.

In my view, this excerpt from the decision in Maple Lodge Farms Limited, supra, applies equally to the circumstances at bar. In considering the definition of "entrepreneur" the visa officer fairly considered the relevant criteria. The lack of ability to speak English and the lack of contacts and relatives in Canada are clearly relevant⁴.

     For these reasons, I conclude that the within application for judicial review should be dismissed.

Certification

     Counsel for the applicant proposed the following question for certification pursuant to section 83 of the Immigration Act.

"Is it permissible for a visa officer to take into account an entrepreneurial applicant's language abilities in determining whether or not a visa should be issued when the visa officer has already taken this factor into account under the selection criteria factor for language abilities?"

     Counsel for the respondent did not agree on the basis that the factual scenario herein is specific to this case and does not raise a serious issue of general importance. I agree with that view. Accordingly no question will be certified.

"Darrel V. Heald"

D.J.

Toronto, Ontario

October 29, 1997

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                  IMM-3250-96

STYLE OF CAUSE:          YOUSIF ZAYA

                     - and -

                     THE MINISTER OF CITIZENSHIP

                     AND IMMIGRATION

DATE OF HEARING:          OCTOBER 27, 1997

PLACE OF HEARING:          TORONTO, ONTARIO

REASONS FOR ORDER BY:      HEALD, D.J.

DATED:                  OCTOBER 29, 1997

APPEARANCES:

                     Mr. Les J. Hulka

                         For the Applicant

                     Mr. Stephen Gold

                         For the Respondent

SOLICITORS OF RECORD:

                    

                     Hulka, Laing & Associates

                     500-267 Pelissier Street

                     Windsor, Ontario

                     N9A 4K4

                         For the Applicant

                      George Thomson

                     Deputy Attorney General

                     of Canada

                         For the Respondent

                     FEDERAL COURT OF CANADA

                     Court No.:      IMM-3250-96

                     Between:

                     YOUSIF ZAYA

     Applicant

                         - and -

                     THE MINISTER OF CITIZENSHIP

                     AND IMMIGRATION

     Respondent

                     REASONS FOR ORDER

                    

__________________

¹      Applicant's Application Record - Page 20.

²      Affidavit of Francine Milo, paragraph 11.

³      [1982] 2 S.C.R. at pp 7-8.

⁴      Compare Zhen v. M.C.I. (F.C.T.D., IMM-978-96) November 26, 1996.      See also Hussain v. M.C.I., (F.C.T.D. IMM-1777-96) January 15, 1997.