Malik v. Canada (Minister of Citizenship and Immigration), docket IMM-2983-96

     IMM-2983-96

B E T W E E N:

Hamid Mahmood MALIK

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

NADON J.:

     The applicant seeks to set aside the decision of a Visa Officer pursuant to which his application for permanent residence in Canada was refused. The Visa Officer"s decision was communicated to the applicant by a letter dated July 14, 1996 which reads as follows:

This refers to your application for permanent residence in Canada and to your interview at the High Commission on 06 May 1996.

I have now completed the assessment of your application and regret to inform you that I have determined that you do not qualify for immigration to Canada as an entrepreneur.

Section 2(1) of the Immigration Regulations, 1978, provides the following definition of entrepreneur,

"entrepreneur" means 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

(b)      who intends and has the ability to provide active and on-going participation in the management of the business or commercial venture;

You have stated that you wished to become a partner in an already established electrical sales and service store in Toronto with an investment of CAD $15,000. Unfortunately, I cannot regard your proposed business as a significant contributor to the economy either in terms of the size of investment or in terms of the potential creation of employment or in terms of its need to the local community.

Furthermore, in my opinion you have not established that you have successfully operated a business. Although you claim to have been a sub-contractor while in Libya, you have also advised that this was not a registered business and that you paid no taxes. The nature of your activities indicate that you were in effect an indirect employee of the Italian Embassy and that you were not in a situation where you were operating a business and openly soliciting clients in a genuine and competitve [sic] business environment. In view of your inability to substantiate your experience as a businessman, I am unable to credit you with any business experience. I am not satisfied that your have the ability to provide active and on-going participation in the management of a business.

I have also assessed your application according to the criteria for Independent [sic] category applicants but you do not qualify in that category either. Pursuant to section 8(1) of the Immigration Regulations, independent applicants, are assessed an [sic] the basis of education, vocational preparation, experience, occupational demand, arranged employment or designated occupation, Canadian demographic factors, age, knowledge of the French and English languages and personal suitability. You were assessed based on the requirements for each of the following occupations: Air Conditioning Mechanic (CCDO 8733.114), Refrigerator Serviceman (CCDO 8533.150). You fail, however, to achieve the minimum number of points for selection.

As you fail to meet the selection criteria of any immigrant category, you come within the inadmissible class of persons described in section 19(2)(d) of the Immigration Act, and your application must, therefore, be refused.

I realize that this decision will be a disappointment to you and regret that it cannot be otherwise.

     The applicant"s main argument is to the effect that the Visa Officer committed an error when he concluded that the applicant"s proposed business would not make a significant contribution to the Canadian economy. In that regard, the applicant submits that in support of his conclusion, the Visa Officer found that the applicant"s proposed investment of $15,000.00 was insufficient. The applicant submits that this finding was an obvious error on the part of the Visa Officer since he had been informed that the proposed investment was $115,000.00.

     As appears from the Visa Officer"s letter, his conclusion that the applicant"s proposed business would not make a significant contribution to the economy was not based on the sole fact that the investment was not sufficient. He was not satisfied that the proposed business would create employment opportunities or that it would meet the needs of the local community.

     At first glance, the applicant"s submission appeared attractive but after hearing arguments from both sides, I am satisfied that the size of the investment is only one of a number of factors which the Visa Officer considered in reaching his conclusion.

     Consequently, even if the Visa Officer was mistaken with respect to the size of the investment, I am of the view that this error of fact does not render his conclusion reviewable. On the evidence, I am satisfied that the Visa Officer"s conclusion would not have been any different even if he had found that the proposed investment was $115,000.00. The burden of proving that his proposed business would make a significant contribution to the economy and that employment opportunities would be created or continued in Canada for one or more Canadian citizens or permanent residents rested on the applicant. On the evidence that was before him, I cannot conclude that the Visa Officer made a reviewable error in concluding that the applicant had not met his burden.

     At paragraph 28 of his memorandum of argument, counsel for the respondent makes the following submission:

29.      The Respondent submits that the Visa Officer"s finding that the proposed business would not make a significant contribution to the economy in Canada was based on a number of factors, including the relatively minor nature of the proposed business activities in the business community. Furthermore, even though the Applicant planned to invest in a pre-existing business, the Applicant failed to provide the Visa Officer with any information on the current financial situation of the business and its current viability. This lack of information regarding an existing business was crucial in the Visa Officer"s finding that the Applicant had not established to him that his proposed business investment would make a significant contribution to the Canadian economy.

     After reviewing the evidence, I can only agree with the respondent"s submission on this point. Put another way, I am of the view that the Visa Officer"s conclusion, based on the evidence submitted to him by the applicant, is entirely reasonable.

     The Visa Officer, in dismissing the applicant"s application for permanent residence, also concluded that the applicant had not satisfied him that he had the ability to provide active and ongoing participation in the management of a business.

     The applicant attacks that part of the decision on the ground that the Visa Officer fettered his discretion, and thus, made an error of law in construing the definition of "entrepreneur" by requiring the applicant to have operated a successful business in the past. The applicant, in support of his position, refers to the Immigration Regulations which provide, under the heading of Assessing eligibility , that a certain number of points should be considered by the Visa Officer in assessing an applicant"s intent and ability to do business in Canada. Section 3.1 of the Regulations provides the following:

The following are among the points to consider in your assessment of an applicant"s intent and ability to do business in Canada. The onus is on the applicant to document his or her qualities and skills:

"      net worth;

"      past and present fields of activity;

"      level of expertise;

         "      standing in the business community;

"      recognition for business achievements;

"      ownership of intellectual property;

"      educational background;

"      specialized business training;

"      memberships in professional associations;

"      market research;

"      exploratory visit to Canada;

         "      preparation for the move to Canada;

         "      education in Canada;

         "      official language proficiency;

         "      ownership of assets in Canada;

"      relatives in Canada; and

         "      other knowledge of Canada or connections with Canada.

     When one examines the points which the Regulations suggests to the Visa Officer as being relevant to a determination of "intent and ability to do business in Canada", one easily comes to the conclusion that there was nothing, or practically nothing, in the evidence to enlighten the Visa Officer with regard to the various points of relevance. That is why, in my view, the Visa Officer concentrated on the applicant"s past activities as a businessman. On the evidence, I can only agree with the Visa Officer that the applicant was unable to substantiate his experience as a businessman. Since the burden of satisfying the Visa Officer with respect to his qualities and skills was on the applicant, the Visa Officer"s conclusion that he had not been so satisfied is not unreasonable.

     As Mr. Justice Hugessen of the Federal Court of Appeal stated in Shaw v. M.E.I., (1994) 170, N.R. 238, at page 240 of his reasons:

To succeed in his attack here the applicant must show that the decision-maker erred in law, proceeded on some wrong or improper principle or acted in bad faith. ...

     I am of the view that in the present matter no reviewable error was made by the Visa Officer. I am also of the view that the Visa Officer did not proceed on a wrong or improper principle or that he acted in bad faith. Consequently, this application for judicial review shall be dismissed.

        

     Judge

Ottawa, Ontario

September 19, 1997.

     IMM-2983-96

OTTAWA, ONTARIO, this 19th day of September, 1997.

PRESENT: THE HONOURABLE MR. JUSTICE MARC NADON

B E T W E E N:

Hamid Mahmood MALIK

Applicant

- and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     ORDER

     This application for judicial review is dismissed.

     -

     Judge