Date: 20071219
Docket: IMM-6768-06
Citation: 2007
FC 1336
Ottawa, Ontario, December 19, 2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
ARAM TCHAPRAZIAN
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an application
for judicial review of a visa officer’s decision in Damascus, dated October 17, 2006, whereby she rejected the applicant’s demand for
a permanent residence visa as an entrepreneur. The visa officer concluded that
the applicant did not have the ability or intention to provide active and on-going participation in the
management of his brother’s Canadian business. This application for judicial
review is allowed for the following reasons.
FACTS
[2]
The applicant is a
citizen of Syria who applied for a permanent residence visa
as an entrepreneur at the Embassy of Canada in Damascus. His brother, Kasbar Tchaprazian (Kasbar), also applied for a permanent
residence visa in the same category.
[3]
In 1978, the applicant
left school, having completed seven years of education, to work as an
apprentice goldsmith to his father in his family’s gold and precious metal
manufacturing business in Aleppo, Syria.
[4]
In 1982, his father
made Kasbar a 50% partner in the business. In 1990, he handed over the
remaining 50% shareholding to the applicant.
[5]
The applicant is in
charge of the manufacturing side of the business: he staffs employees; he contracts,
purchases and sells equipment; and he provides artistic direction. He also
deals with the technical work inside the workshop and the supervision of employees.
[6]
Kasbar is responsible
for the administrative side of the business: he sells and markets the products;
he deals with the maintenance of accounts and general record keeping; he is in
charge of insurance and safety; he negotiates the contracts; and he implements
strategies regarding the supply of raw goods.
[7]
After working 15 years
in the family business, the applicant received professional recognition as a
qualified goldsmith from the Professional Association for Goldsmithery &
Jewellery in Aleppo.
[8]
The applicant’s younger
brother, Dikran Tchaprazian (Dikran), has been a Canadian citizen since 2001.
He is a self-employed jeweller who manufactures gold and precious metal chains.
In 1999, he opened a wholesale jewellery manufacturing business, DSK Goldsmith.
He is also the owner of a retail store called Arman’s Jewellers Ltd. which
opened in 2001.
[9]
The applicant and
Kasbar each intend to expand, diversify and invest $ 500,000.00 in Dikran’s
retail store in Canada. In 2003, the applicant attended a
business seminar in Canada and he also analysed the Canadian market.
[10]
On October 17, 2006,
the applicant’s request for a permanent resident visa was rejected while his
brother’s application was accepted.
THE IMPUGNED DECISION
[11]
The applicant filed his
application for permanent residence in Canada, prior to the date that the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 and its corresponding regulations, the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the IRPR) came into effect. Pursuant to section 361
of the IRPR, the applicant’s
demand, which was made under the former Immigration Regulations,
SOR/78-172 (the former Regulations) and was still pending when the IRPR came
into force, must be assessed under both the former Regulations and the IRPR.
[12]
The visa officer
concluded that the applicant did not meet the requirements under the IRPR. She accepted the applicant’s experience but she
concluded that he did not demonstrate an ability to manage a business,
especially given that the administrative tasks were his brother’s
responsibility. The applicant does not challenge this finding.
[13]
The visa officer then
assessed the application under the former Regulations. She concluded
that the applicant was not eligible for a permanent resident visa as a member
of the entrepreneur class and stated as follows:
Section 2(1) of
the Regulations defines an entrepreneur as an immigrant 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. He must also intend
and have the ability to provide active and on-going participation in the
management of the business or commercial venture.
Based on the
answers you provided at the interview on September 18, 2006; as you stated your
brother in Canada will be managing the business, you did not satisfy me that
you intend and have the ability to provide active and on-going participation in
the management of the business or commercial venture in Canada. Consequently, you are not eligible
to receive an immigrant visa as an entrepreneur.
It is that part of the decision that is contested by the applicant.
ISSUES
[14]
This
application for judicial review raises the following issues:
1)
What is
the appropriate standard of review?
2)
Did the visa officer err in her assessment of
the application for a permanent resident visa as an entrepreneur under the
former Regulations?
ANALYSIS
1) What is
the appropriate standard of review?
[15]
The case law is divided
regarding the appropriate standard of review applicable to the judicial review
of a visa officer’s decision. However, in Ouafae v. Canada (Minister of Citizenship and Immigration), 2005 FC 459 (approved in 2006 FCA 68), I concluded that these
contradictory positions were reconcilable:
[18] Opinion on the
appropriate standard of review
for decisions by visa officers
is divided and appears to have spawned seemingly contradictory decisions. In
some cases, reasonableness simpliciter was the
chosen standard (see, inter alia, Yaghoubian v.
Canada (M.C.I.), [2003] FCT 615; Zheng
v. Canada (M.C.I), [2000] F.C.J. No. 31,
IMM-3809-98; Lu v. Canada
(M.C.I.), [1999] F.C.J. No. 1907,
IMM-414-99). In other decisions, patent unreasonableness was chosen instead
(see, for example, Khouta v. Canada (M.C.I .), [2003] F.C.J. No. 1143,
2003 FC 893; Kalia v. Canada (M.C.I.),
[2002] F.C.J. No. 998,
2002 FCT 731).
[19] And yet, on closer
inspection, these decisions are not irreconcilable. The reason for the
different choices is essentially that the nature of the decision under review
by this Court depends on the context. Thus it goes without saying that the
appropriate standard of review
for a discretionary decision by a visa officer
assessing a prospective immigrant's occupational experience is patent
unreasonableness. Where the visa officer's
decision is based on an assessment of the facts, this Court will not intervene
unless it can be shown that the decision is based on an erroneous finding of
fact made in a perverse or capricious manner.
[20] However,
it is not the same for a decision by a visa officer
involving an application of general principles under an Act or Regulations to
specific circumstances. Where the decision is based on a question of mixed law
and fact, the Court will show less deference and seek to ensure that the
decision is quite simply reasonable…
[16]
The issue of whether the visa
officer erred in her assessment of the applicant’s ability to participate in
the management of his brother’s business is one of mixed fact and law.
Accordingly, the reasonable simpliciter standard applies and the Court
will intervene only if the
visa officer’s decision discloses no line of analysis within the given reasons that could
reasonably lead the tribunal from the evidence before it to the conclusion it
reached: see Law Society of New Brunswick v.
Ryan, [2003] 1 S.C.R. 247; and Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748. The application of the reasonable simpliciter standard
is not a point of contention between the parties.
2) Did the visa officer err in her assessment of the application for
a permanent residence visa as an entrepreneur under the former Regulations?
[17]
Pursuant to section
2(1) of the former Regulations, the applicant must intend to and have
the ability to establish, purchase or make a substantial investment in a
business in Canada to contribute to the Canadian economy and to
create a minimum of one full-time employment opportunity. The applicant’s ability
and intention to provide active and on-going participation in the management of
the business or commercial venture is also assessed.
[18]
This is to be contrasted
to the definition of an “entrepreneur” found in the IRPR, which is much more
restrictive. The IRPR provides that, in addition to a minimum net worth of $
300,000.00 and a written statement, an applicant also needs to have the
required “business experience” in the management of a “qualifying business” and
the control of a percentage of equity in this business (for ease of reference,
the text of these provisions is reproduces in the Annex). Accordingly, the
applicant’s failure to demonstrate that he meets the requirements under the IRPR
is not determinative for the assessment of his application pursuant to the
former Regulations.
[19]
While the visa officer
accepted that the applicant had the intention to expand and invest in his
brother’s business, she found that the applicant did not meet the definition of
an “entrepreneur” pursuant to the paragraph (b) of the former Regulations.
In fact, she concluded that he did not have the ability to provide active and
ongoing participation in the management of the business. The visa officer based
her findings on the applicant’s statement that his brother Dikran will be
managing the business in Canada and that he and Kasbar will help him.
[20]
The visa officer did
not provide any other reasons to support her findings. During the interview,
the visa officer explained to the applicant that he needed experience in
managing a business pursuant to the IRPR. Accordingly, the applicant
explained that he had many years of experience managing the Syrian business
with his brother. However, the visa officer failed to discuss the requirements
under the former Regulations. This failure raises a serious doubt as to
whether the visa officer actually considered the application under the former Regulations.
[21]
Further, I do not think
that the sole reason given by the visa officer to support her negative finding
is relevant. Indeed, it is understandable that the applicant and Kasbar would
rely on their brother Dikran’s knowledge of the Canadian market upon their
arrival. In any event, it does not imply that they would not participate in the
operations of the business.
[22]
The Immigration
Manual, OP 6 - section 3.1, provides guidelines to assess the eligibility
of an entrepreneur under the former Regulations:
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 field activity;
∙ level of expertise
∙ standing in the business community;
∙ recognition for business achievements;
∙ ownership of intellectual property;
∙ educational background;
∙ specialized business training;
∙ membership 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.
Note that the definition of an entrepreneur
does not refer to a business track record nor to experience. While the person
does not need to have a clear track record, past success in business is a
strong indicator of the intent and ability to establish a business in Canada. A history of significant business responsibility
will certainly strengthen the application.
General business experience or management
experience may be a good measure of the applicant’s intent and ability to do
business. Some types of non business experience may also be readily
transferable to a business setting. This may include financial or personnel
experience, experience as a professional, or specific experience in the field
of the intended business. The stronger the applicant’s experience, the more it
will enhance the application.
[23]
The applicant has over 25
years of experience and expertise in the jewellery business. He has managed a
successful business in Syria, of which he shared equal partnership with
his brother. They collaborated in the success of their enterprise in different
ways; the applicant was in charge of the manufacturing process and employee supervision
while the administrative tasks were his brother’s responsibility. Although each
of them had separate tasks, their work was not compartmentalized to the extent
that the applicant was unaware of what was going on in the business.
[24]
In his interview before
the visa officer, the applicant explained that they would need approximately 15
machines in order to expand their brother’s business in Canada. He said that he had travelled to Italy to view the machines that they expected to purchase.
The applicant was also aware of the annual profit and the taxes the Syrian
business pays. Even if the applicant was mainly in charge of the technical
aspects, those elements clearly show his knowledge and participation in the
management of the business
[25]
Moreover, an entrepreneur
does not need to demonstrate identical experience to the intended business to
be established in Canada. The applicant submits that the visa
officer had to take into consideration his experience as a supervisor in the
Syrian business as an indication of his ability to establish or contribute to a
similar business.
In So v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 6 (QL), Justice Dubé
concluded that specific
experience in running or managing a business was not required:
[5] After
reviewing the applicant's file, the Immigration Officer concluded that his
track record failed to demonstrate that he could provide active and on going participation
in the management of a business as required under subsection 2(1) of the
Immigration Regulations, 1978 (the "Regulations"). This conclusion
was largely based on the fact that the Immigration Officer felt that the
applicant was not involved in the management of the bank and thus merely
performed as an employee and not an entrepreneur.
[…]
[9] There is nothing in the
Regulations which specifically requires that an applicant under the
entrepreneur category have the prior experience of running or managing a
business. An entrepreneur under the Regulations is an immigrant who has the
ability to establish, purchase or make a substantial investment in a business
or commercial venture in Canada and who intends and has the ability to provide active and on
going participation in the management of that business.
See also Tam v. Canada (Minister
of Citizenship and Immigration), [1997] F.C.J. No. 568 (QL).
[26]
Applicant’s counsel correctly
asserts that the difference between supervision and management is barely
discernable. The Black’s Law Dictionary (7th edition), describes
a manager as a “person who administers or supervises the affairs of a business,
office, or other organization” while supervision is defined as “the act of
managing, directing or overseeing persons or projects”.
[27]
Not only does the
applicant have extensive work experience, he also received professional
recognition as a qualified goldsmith in 1999; he attended a business seminar in
2003; he has studied the Canadian market; and he intends to invest $ 500,000.00
in his brother’s Canadian business.
[28]
The applicant meets
numerous qualities and skills described in the Immigration Manual. After
having carefully reviewed the record, I am of the view that the visa officer
erred in her assessment of the applicant’s ability and intention to provide
on-going participation in the management of a business in Canada.
[29]
I agree with counsel
for the applicant that the visa officer’s concern about Dikran’s involvement
was not relevant to an assessment of the applicant’s ability and intention to
participate in a business in Canada. In any event, if the applicant ultimately
fails to make a significant contribution to the business, the Immigration
Appeal Decision is empowered to assess his compliance with the terms and
conditions of his permanent visa. Such concerns are not open to the visa
officer in deciding the initial application for permanent residence.
[30]
I would therefore allow
this application for judicial review and remit the matter to a different visa
officer for expeditious redetermination.
ORDER
THIS COURT ORDERS that the application for judicial
review is allowed, the visa officer’s decision is set aside and the matter is
referred back to a different visa officer for redetermination.
"Yves
de Montigny"
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