Date: 20070625
Docket: IMM-6155-06
Citation:
2007 FC 670
Ottawa, Ontario, June 25, 2007
Present:
The Honourable Mr. Justice Beaudry
BETWEEN:
OSIRIS
GOMEZ GARRO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision by
Jérôme Lapierre, Immigration Officer (the officer), dated October 26, 2006,
refusing the application for a work permit for the applicant and visitor status
for his family. The applicant failed to meet the conditions required to obtain
investor status under the North American Free Trade Agreement (the NAFTA).
ISSUES
[2]
Did the
officer comply with the principles of procedural fairness in this case:
(a)
in
rendering a decision without reasons?
(b)
in
failing to offer the applicant an interpreter at the interview?
(c)
in
not informing the applicant about his concerns relating to the information he
had provided?
[3]
For the
following reasons, the application for judicial review will be allowed.
FACTUAL CONTEXT
[4]
A business
man and citizen of Mexico, the applicant incorporated a publishing company for
educational books, Éditions Gnostiques Canada Inc., in Ottawa
on April 21, 2001. He subsequently came to Canada each year to ensure that the
business in which he had invested an initial amount of $20,000 was operating
effectively.
[5]
In July
2005, he settled in Gatineau, Quebec, with his wife and their four children. On
September 12, 2005, he filed an application for trader or investor status (work
permit) under the NAFTA.
[6]
Since he
speaks neither French nor English, he filed his application using the IMM 5476
form entitled “Use of a Representative” and designated lawyer Pablo
Fernandez-Davila as his representative (representative) for his dealings with
the Department of Citizenship and Immigration.
[7]
According
to the applicant, the interview with the officer took place on November 23,
2006, in the presence of his representative, with no interpreter. The applicant
says that the interview lasted only 30 minutes and that all the questions were
addressed only to his representative. He understands that the discussion
afterwards dealt with his business in Mexico, the Antonio Rosales 165-167,
Jalisco, Mexico, which he purchased in 2000 for $175,000 and which has no
mortgage.
[8]
According
to the applicant, the officer did not ask him any direct questions about his
personal life or his investments in Canada. According to the evidence in the
docket, the applicant’s investments in Canada are substantial: besides the
Ottawa publishing house, this is a list of his properties in Quebec and
Ontario:
(1)
Family
home at 129 Galène Street, Gatineau, Quebec, purchased in 2005 for $313,000
with a mortgage of $150,000;
(2)
An income
property at 7722 St-Denis Street, Montréal, Quebec, purchased in 2001 for
$175,000, current value $250,000;
(3)
Vacant
land in Aylmer, Quebec, purchased in 2004 for $73,000, current value $80,000;
(4)
Vacant
land in Peterborough, Ontario, purchased in 2000 for $37,500, current value
$50,000;
(5)
A property
at 50 Noël Street, Gatineau, Quebec, purchased in 2002 for $78,000, current
value $200,000, with a mortgage of $55,000.
Total value of property in Mexico $200,000
Total value of properties in Canada 893,000
Total value of properties 1,093,000
Mortgages
205,000
Net value of properties
$888,000
[9]
On October
26, 2006, the application for a work permit as an investor was refused, which
is the basis of this application for judicial review.
IMPUGNED DECISION
[10]
The
decision is short. The relevant passages are as follows:
. . .
This letter refers to your application
for a work permit and visitor documents for your accompanying family members
received on January 11th 2006.
After a careful review of your file, we
have determined that you do not meet the requirements to be considered as an
investor under the North American Free Trade Agreement (NAFTA).
The application for visitor records for
your accompanying family members have been refused as well.
. . .
RELEVANT
LEGISLATION
[11]
The
Foreign Worker Manual contains information about temporary admission under the
NAFTA. Section 6.1of Appendix G provides as follows:
|
6 INVESTORS
6.1 What requirements apply to
investors?
The following requirements apply:
• applicant has American or Mexican
citizenship;
• enterprise has American or Mexican
nationality;
• substantial investment has been made,
or is actively being made;
. . .
|
6 INVESTISSEURS
6.1 Quelles exigences s’appliquent à
l’investisseur?
Les exigences suivantes s’appliquent:
• le demandeur a la citoyenneté
américaine ou mexicaine;
• l’entreprise est de nationalité
américaine ou mexicaine;
• un investissement important a été
fait ou est en voie d’être fait;
[...]
|
[12]
The
requisite factors for granting a temporary work permit in the investor category
are set out in section 6.3 of Appendix G:
|
6.3
What criteria must be met?
...
There
is no minimum dollar figure established for meeting the requirement of
“substantial”
investment.
Substantiality is normally determined by using a “proportionality test” in
which the amount invested is weighed against one of the following factors:
•
the total value of the particular enterprise in question (determining
proportion is a largely straightforward calculation involving the weighing of
evidence of the actual value of an established business, i.e., purchase price
or tax valuation, against the evidence of the amount
invested
by the applicant); or
•
the amount normally considered necessary to establish a viable enterprise of
the nature contemplated. (This may be a less straightforward calculation.
Officers will have to base the decision on reliable information on the
Canadian business scene to determine whether the amount of the intended
investment is reasonable for the type of business involved. Letters from
chambers of commerce or statistics from trade associations may be reliable
for this purpose.)
|
6.3
Quels critères faut‑il respecter?
[...]
Aucun
montant minimal n’a été fixé relativement à l’importance de l’investissement.
Celle‑ci est
normalement
déterminée par l’application d’un « critère de proportionnalité ». Il s’agit
de
comparer
la somme investie à l’une des sommes suivantes:
•
la valeur totale de l’entreprise en question [pour déterminer la valeur
totale, il suffira de
comparer
une preuve de la valeur réelle d’une entreprise établie (soit le prix d’achat
ou l’évaluation fiscale) avec celle de la somme investie par le demandeur];
•
le montant qui serait normalement jugé nécessaire pour lancer une entreprise
viable du genre envisagé. (Dans ce cas‑ci, la comparaison peut se
révéler plus délicate. L’agent devra fonder sa décision quant au caractère
raisonnable de l’investissement projeté sur des renseignements sûrs touchant
les entreprises du même genre au Canada. Des lettres de chambres de commerce
ou des statistiques provenant d’associations commerciales
pourraient
constituer des sources sûres.)
|
AnalysIS
[13]
Since the
issue is whether there has been a breach of procedural fairness, it is not
necessary to undertake a pragmatic and functional analysis (Dr. Q v. College
of Physicians and Surgeons of British Columbia), [2003] 1 S.C.R. 226.
[14]
If the Court
finds that there has been a breach of procedural fairness, the application for
judicial review will be allowed (Ha v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195 (F.C.A.); Housen v.
Nikolaisen, [2002] 2 S.C.R. 235).
(a)
Lack of
Reasons
[15]
As the
applicant points out, the letter of refusal that the officer sent contains no
reasons explaining why his application was denied. I must therefore rely on the
officer’s notes in the docket to try to understand the reasons behind her
decision (Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817).
[16]
The notes
in the computer system (FOSS) state:
23OCT2006. WORK PERMIT REFUSED AFTER
CONSULTATION WITH FOREIGN WORKER UNIT AT CIC MONTREAL. CLIENT WAS APPLYING AS
AN INVESTOR UNDER NAFTA (EXEMPTION T22). CLIENT IS REQUESTING A WORK PERMIT IN
ORDER TO ESTABLISH A BUSINESS NAMED “LES EDITIONS GNOSTIQUES”. AS PER
INFORMATION CLIENT PROVIDED ON FILE, CLIENT ONLY INVESTED 20 000$ IN THE
BUSINESS. CLIENT CAME FOR AN INTERVIEW ON 19SEP2006 ACCOMPANIED BY HIS LAWYER
PABLO FERNANDEZ DAVILA WHO WAS ALSO ACTING AS TRANSLATOR. CLIENT CONFIRMED
DURING THE INTERVIEW THAT HE DID NOT INVEST MORE MONEY IN THE COMPANY AS HE IS
WAITING FOR US TO ISSUE HIM A WORK PERMIT BEFORE HE DECIDES TO INVEST MORE
MONEY IN THE COMPANY. CLIENT HAS ALMOST 1 000 00$ IN REAL ESTATE IN CANADA
BUT NONE OF IT IS RELATED TO THE COMPANY HE IS PLANNING TO START. NOt
satisfied client meets the requirement of an investor under nafta. appendix g
section 6.1 of the foreign worker manual states that one of the requirEment to
be considered an investOR under nafta is to have made a “substantial investment
or is actively being made”. 20 000$ does not constitute a substantial
investment. application refused. refusal letter and volontary departure order
given to client.
[17]
According
to these notes, it seems that the officer did not consider the initial sum of
$20,000 to be a substantial investment for purposes of granting the applicant a
permit. However, the evidence in the record shows that the applicant invested
$166,000 in commercial premises for the company, $67,000 in book stocks to sell
and thousands of dollars in equipment (applicant’s affidavit, paragraphs 28 and
29).
[18]
The
officer did not file an affidavit. The Court also reviewed the notes of the
interview with the applicant and his representative (pages 12 to 14 of the
tribunal record), but it is impossible to understand the basis for the impugned
decision by combining the officer’s notes in the file with her interview notes.
[19]
Given that
the applicant’s evidence was so compelling, the Court can only conclude that
there is absolutely no reason for the officer’s decision. On this ground alone,
the application for judicial review must be allowed.
(ii) right to an
interpreter
[20]
The
applicant complains that the officer did not inform him of his right to have an
interpreter during the interview.
[21]
Relying on
the decision of Mr. Justice Pierre Blais in Lasin v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1655 (QL), the respondent
maintains that procedural fairness did not impose a duty on the officer to
inform the applicant of his right to an interpreter. The respondent refers the
Court to paragraphs 11 and 12 of this decision:
The applicant also
claims that the failure on the part of the immigration officer to provide him
with notice of the right to a qualified interpreter during the proceeding was a
breach of procedural fairness. I agree with the respondent's submissions that
there does not exist a positive obligation on the immigration officer to inform
the applicant of his right to an interpreter in the present matter,
particularly when taking into consideration that the immigration officer
illustrated that the applicant comprehended the proceedings. In support of this
position, the respondent mentions the findings of Justice Blanchard in Umba
v. Canada (Minister of Citizenship and Immigration) 2001 FCT 582, [2001]
F.C.J. No. 870, at paragraph 19:
·
As to the
argument that the senior immigration officer had a duty to inform the plaintiff
of his right to an interpreter and the possible consequences of the interview
before the latter began, I have concluded after thinking about the matter that
the plaintiffs simply cannot advance such arguments. A review of the notes
taken by the immigration officer on May 9, 2000 indicates that the plaintiffs
fully understood all the events and did not show any sign that they did not
understand.
In the
immigration officer's affidavit, it is clearly noted that the applicant
understood the questions being asked and gave coherent answers. Further, the
applicant did not request an interpreter, had previously requested that
immigration proceedings be held in English and was represented by counsel at
the proceeding who did not raise any issue regarding the need for
interpretation. The evidence illustrates that the applicant comprehended the
proceeding and as such no breach of procedural fairness occurred for the
failure on the part of the immigration officer to mention the right to an
interpreter.
[22]
In the
proceeding before us, I do not believe that the officer was required to inform
the applicant that he had the right to an interpreter because on the one hand,
he was represented by counsel who, according to the notes in the file, acted as
an interpreter. On the other hand, at no time during the interview did the
applicant or his representative show any concerns about the interview being
conducted in English without the assistance of an interpreter (Khan v.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1778
(QL)).
(iii) right to be
informed of the officer’s concerns
[23]
It is
unnecessary for me to deal with this issue given my finding about the lack of
reasons in the decision.
[24]
No
question for certification was proposed and there is none in the docket.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that
1. This application for judicial
review be allowed and the matter be remitted for reconsideration by a different
officer.
2. There is no question to be
certified.
“Michel Beaudry”
Certified true translation
Mary Jo Egan, LLB
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