Docket: IMM-7232-10
Citation: 2011 FC 1151
Ottawa, Ontario, October 14, 2011
PRESENT: The Acting Chief Justice
BETWEEN:
|
|
HANA BALOUL
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Hana
Baloul, the applicant, seeks judicial review of a decision dated October 18,
2010, in which an immigration officer at the Canadian Embassy in Paris refused
to grant the applicant status as a permanent resident in the investor class
under the provisions of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA]. Leave was granted on July 7, 2011.
I.
Background
[2]
Ms.
Baloul submitted an application for permanent residence at the Canadian
Consulate General in Buffalo, New York, in November
of 2003. Based on her supporting documentation, Ms. Baloul was deemed to meet the
definition of investor for the years 2000 to 2002 (Trial Record at 291, Computer
Assisted Immigration Processing System [CAIPS] notes for November 2, 2005).
[3]
According
to the CAIPS notes on record, the application could not proceed, as the
background results for Ms. Baloul’s husband were still pending. An interview
with Mr. Baloul was scheduled for August 26, 2008, and his attendance was confirmed
on June 3, 2008. The interview was held as scheduled, but Mr. Baloul did not
attend, unable to secure a visitor visa to the United States. As a
result, the file was transferred to the Canadian embassy in Paris, where Mr. Baloul
could more easily attend from his home in Brussels, Belgium (Trial
Record at 291, 292 and 304, CAIPS notes for September 6, 2006, April 7, June 3,
August 26, and September 10, 2008).
[4]
The
applicant’s version of the facts differs from the account found in the Trial
Record. Ms. Baloul explains she was asked to attend the interview in Buffalo, was told
her interview went well, and that she would be advised of the agent’s decision
shortly thereafter. But she also indicates being asked near the end of the interview
why her husband was absent and that she replied that the notice of interview
did not request his presence. It was then suggested that her husband could be
interviewed in Europe. At any rate, Ms. Baloul received notice on November 10,
2008, that her application was transferred to the Canadian Embassy in Paris (Applicant’s
Record at 11-12, Applicant’s Affidavit at paras 11-13).
[5]
In
August of 2010, the applicant received a notice to attend an interview in Paris, scheduled
for October 14, 2010. Ms. Baloul and her husband attended the interview and a
final decision was rendered by the immigration officer on October 18, 2010.
II.
Applicable Law and Impugned Decision
[6]
Section
90 of the Immigration and Refugee Protection Regulations, SOR 2002/227
[IRPR] provides that a foreign national applying for permanent residency as a
member of the investor class must meet the definition of “investor” as set out
in subsection 88(1) of the IRPR. The first of three criteria require the
foreign national to have “business experience”, defined as a minimum of two
years of experience in either “the management of a qualifying business and the
control of a percentage of equity of the qualifying business” or “management of
at least five full-time job equivalents per year in a business”.
[7]
In
her decision, the immigration officer wrote that the applicant had not
satisfied her of her business experience, failing to demonstrate that she took
part in the management of Marwan Oulabi Company: “You, yourself, described
yourself as a human resources supervisor and a control quality operator during
the interview. You failed to demonstrate that you were fully involved as a
decision maker in this company” (Applicant’s Record at 6).
III.
Position of the Parties
[8]
The
applicant’s arguments can be grouped into two categories. First, the applicant
questions the immigration officer’s analysis of the evidence, claiming she
ignored or misconstrued relevant evidence, made unreasonable inferences, and
considered irrelevant and extraneous matters. The second set of arguments
raises questions of procedural fairness, with respect to both the notice given
as to the purpose of the interview and the language difficulties and resulting need
for translation.
[9]
For
its part, the respondent submits that the immigration officer’s analysis was
reasonable, relying on contradictions and inconsistencies emanating from the
applicant’s oral testimony and evidence. The respondent also contends that
there was no breach of procedural fairness. The officer raised her concerns during
the interview, the applicant was given the opportunity to respond, and there is
no duty to seek further clarification or provide a fairness letter before or
after the interview.
IV.
Issues and Standard of Review
[10]
The
following issues will be reviewed by this Court:
1. Did the
officer err in determining that the applicant did not have the required
management experience?
2. Did the officer
fail to make his decision in accordance with the principles of procedural
fairness?
[11]
The
immigration officer deciding whether an applicant possesses the management
experience requirement under the IRPR is entitled to a high level of deference
(Nissab v Canada (Minister of Citizenship and Immigration), 2008 FC 25, [2008] FCJ
57). As a result, the officer’s assessment of the evidence put
forward by the applicant is a determination of fact and law reviewable under
the standard of reasonableness, while issues raised with respect to procedural
fairness are reviewable on a standard of correctness (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]).
V.
Analysis
A. Did the
officer err in determining that the applicant did not have the required management
experience?
[12]
First
I would clarify that it is not for this Court to appreciate the applicant’s
qualifications and that this Court has only to verify the reasonableness of the
officer’s decision. At issue is the role the applicant played in managing
Marwan Oulabi Company or its employees. Ms. Baloul contends that she submitted
persuasive evidence and documents regarding her business experience which was
ignored, misconstrued or misapprehended. The applicant points to three
supporting documents, of which only one offers a third-party description of her
role at Marwan Oulabi Company.
[13]
A
letter signed by the company’s accountant states that the management of the
company has been run in partnership by Marwan Oulabi, Ms. Baloul, and her husband
and that the partners set the policy business goals and make the major
decisions as to the operation of the company. The letter adds that: “[b]esides
being part of the management team, Ms. Hana Baloul also takes part in
supervising the operation of the business on a part time basis and has been
doing this since 1995 until 2002” (Applicant’s Record at 28). Another document
describing Ms. Baloul’s role, which she did not raise in her written
submissions, states that she was working for the company from 1999 to 2002 and
“had done great in completing all the administrative procedures, had good work
ethics and was excelled with good manners and conduct [sic]” (Trial
Record at 564).
[14]
In
the officer’s opinion, the supporting documentation did not allow her to
determine the applicant’s role in the management of the company (Respondent’s
Record, Affidavit de Constance Terrier at para 7). Given the somewhat differing
and broad descriptions of Ms. Baloul’s role, it was reasonable for the
immigration officer to conclude that the documentation did not clearly
establish eligibility and that an interview was required (Immigration Manual,
OP 9 – Investors at s 5.6).
[15]
During
the interview, the applicant was asked to describe her role in the management
of Marwan Oulabi Company. According to the CAIPS notes (Applicant’s Record at
7-9), Ms. Baloul indicated she supervised personnel and controlled production,
repeating both terms without providing greater detail. Once a translator was
provided, Ms. Baloul was more precise, explaining that she supervised the
arrival of employees as well the quantity and quality of their work. After
discussing the applicant’s presence at the site on a full-time basis from 2000
to 2002, Ms. Baloul was asked once again to describe her role and
responsibilities. Again, she explained that she supervised employees and
production.
[16]
The
onus was on the applicant to provide sufficient evidence to satisfy the immigration
officer that she met the statutory requirements (Liu v Canada (Minister of
Citizenship and Immigration), 2006 FC 1025, [2006] FCJ 1289). Subsection
88(1) of the IRPR provides that, to be considered an investor, an
applicant must have business experience in either the management of a
qualifying business or the management of at least five full-time employees in a
business.
[17]
The
applicant answered no when asked whether she had any responsibility in managing
the company’s finances; no when asked whether she had any contact with clients
or suppliers; and no when asked whether she took any independent decision as to
organizing production or hiring employees. The applicant confirmed other
individuals were in charge of managing staff and production procedures. The
applicant added that her role was to ensure and confirm that the company ran
properly so that the money invested by her husband was well utilized.
[18]
The
onus was on Ms. Baloul to provide sufficient credible evidence in support of
her application. Unfortunately, she did not meet that onus. The immigration
officer’s conclusions were reasonably open to her and respect the principles of
justification, transparency and intelligibility (Dunsmuir, above, at
para 47). The applicant had to satisfy the officer that she fully qualified
under the IRPR and possessed management experience, but failed to do so through
either supporting documentation or the interview.
[19]
Before
moving to the issue of procedural fairness, I would like to suggest the
following in order to facilitate a proper interpretation of the IRPR. While the
IRPR defines both the terms “investor” and “business experience”, it does not
define the term “management”. The Immigration Manual is also silent on this
question, breaking down “business experience” into three criteria: qualifying
business; time; and role (Immigration Manual, OP 9 – Investors at s 8.2). The
first two criteria are examined in greater detail in sections 8.3 and 8.5, but
the manual remains silent on the “role” criteria, synonymous with the term “management”
left undefined in the IRPR. Without providing any guidance on this point,
immigration officers are left to determine on their own the necessary responsibilities
fitting the “management” requirement. This has the potential to lead to
arbitrary and differing decisions on the same set of facts, especially given
the shared meanings of terms such as “managing” and “supervising” and the
potential difficulties of translating business terms from one language to
another.
B. Did the officer
fail to make his decision in accordance with the principles of procedural
fairness?
[20]
The
applicant raises an issue of procedural fairness with respect to language and
translation and suggests that these may have played a part in the officer’s final
determination. The immigration officer is criticized for speaking too quickly
and not immediately offering the assistance of an interpreter when the
applicant’s difficulty communicating in English became apparent. The
qualifications of the person called in to interpret is also put into question,
as is the fact that at times, the interpreter and the officer communicated with
each other in French, which the applicant does not understand.
[21]
The
applicant received a notice to attend the interview in the form of a letter,
dated August 10, 2010. The two page letter included the following clear
instructions (Respondent’s Record, Exhibit C at 2):
The
Immigration Officer will conduct the interview in English or French. The information you provide
to us during the interview plays an important role in determining your ability
to qualify to immigrate to Canada. If you cannot communicate
easily in either English or French, you must present yourself at the interview
with a professional interpreter […] capable of reading, writing and
speaking either in English or French.
[…]
If you decide to come to the interview without a professional interpreter and
we determine that you cannot communicate easily in English or French, the
Immigration officer will make a decision on your application based on the
information contained in your file and the information provided at the
interview. If you cannot answer the interview questions posed by the
Immigration officer, your application may be refused [emphasis in original].
The applicant
had sufficient time to obtain an interpreter, but chose not to. The risks
associated with this choice were spelled out in unequivocal terms and the
applicant chose to assume these risks. I would add that the onus placed on the
applicant to provide an interpreter has been upheld by this Court (Kazi v Canada (Minister of
Citizenship and Immigration), 2002 FCT 733 at paras 16 -18, [2002] FCJ
969).
[22]
At
the outset of the hearing, the immigration officer indicates having asked the
applicant if she understood her, whether she was speaking too quickly, and
whether there were any difficulties understanding her (Respondent’s Record, Affidavit
de Constance Terrier at para 18). The applicant admits she did not raise any
objections or concerns regarding her language difficulties (Applicant’s
Additional Affidavit at para 13), incidentally contradicting her earlier statement
that she demanded the officer speak more slowly (Applicant’s Record at 16,
Applicant’s Affidavit at para 39).
[23]
When
it became apparent the applicant was having difficulties understanding and
answering the immigration officer’s questions, for the benefit of the applicant
and though she was not required to, the officer offered to invite a colleague
to interpret. The applicant agreed to this suggestion of her own volition and
cannot now question the quality of this interpretation when she was well aware
of the consequences of not arranging for her own professional interpreter. Furthermore,
it is well established law that where there are translation problems, the
complainant must raise the problem at the first reasonable opportunity (Oei
v Canada (Minister of Citizenship and Immigration), 2002 FCT 466 at paras
40 and 42, [2002] FCJ 600; Kompanets v Canada (Minister of Citizenship and
Immigration), [2000] FCJ 726 at para 9, 196 FTR 61; which the applicant did
not do in this case.
[24]
Ms.
Baloul also contests the immigration officer’s failure to notify her of any of
her concerns through a fairness letter, especially in light of the fact
immigration officers in Buffalo had already determined she
met the definition of investor and she was of the view this second interview in
Paris was meant
for her husband. On this point I adopt this Court’s conclusion in Shabashkevich
v Canada (Minister of
Citizenship and Immigration), 2003 FCT 361 at para 22, [2003] FCJ 510 [Shabashkevich],
where faced with a very similar situation, the Court was satisfied that there
was no denial of procedural fairness. I am further supported by previous
findings of this Court that the principle of functus officio applies
only to the final decision to issue a visa and that the immigration officer
making this final determination is statutorily obligated to assess the
applicant’s application, regardless of any findings made by previous officers (Lo
v Canada (Minister of Citizenship and Immigration), 2002 FCT 1155, [2002]
FCJ 1596; Brysenko v Canada (Minister of Citizenship and Immigration),
[2000] FCJ 1443, 193 FTR 129). Having said that, I note that the CAIPS notes
reveal that the immigration officer did raise some concerns about the
explanations given and that Ms. Baloul had an opportunity to explain further. I
conclude from this that even on the facts of this case, the immigration officer
fully assumed her duties.
[25]
Finally,
regarding any duty imposed on the officer to raise her concerns about the applicant’s
business experience, I reiterate that the applicant was given ample opportunity
over the course of a two hour interview to describe her role managing Marwan
Oulabi Company. The applicant was asked repeatedly to provide further details,
but was unable to satisfy the immigration officer that she met the IRPR
requirements. There was no additional obligation for the officer to clarify the
application, reach out and make the applicant’s case, apprise the applicant of her
concerns relating to whether the requirements set out in the legislation have
been met, or to provide the applicant with a “running-score” at every step of
the application process (Pan v Canada (Minister of Citizenship and
Immigration), 2010 FC 838 at para 28, [2010] FCJ 1037).
[26]
As
such, the impugned decision that Ms. Baloul did not meet the definition of “investor”
as set out in subsection 88(1) of the IRPR is reasonable, there was no denial
of procedural fairness, and the application is denied.
[27]
Counsels
for the parties were asked whether they had a question to propose for
certification. None were suggested.
JUDGMENT
THIS COURT’S JUDGMENT
is that the
application for judicial review is dismissed. No question is certified.
“Simon Noël”
Email this Content