Date: 20080617
Docket: IMM-4857-07
Citation: 2008
FC 752
Toronto, Ontario, June 17, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
SEYED-HOJJAT SHAKERI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant seeks
review, under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act), of a decision of a Visa officer (the Officer) of the Embassy
of Canada in Damascus, Syria, which determines that the applicant does not
qualify for a permanent resident visa as a member of the “entrepreneur class” and
therefore refused his application.
I. The Facts
[2]
The
applicant, a citizen of Iran, applied for a permanent
resident visa on behalf of himself, his wife and their two children.
[3]
Interviewed on June 18,
2007 and October 17, 2007, the applicant was requested twice to provide additional
documents, due to the insufficiency of the documentary evidence previously
submitted. He was also required to complete one form per business.
[4]
The applicant provides
additional documentary evidence and indicates being the proprietor of “Seyed
Hojjat Shakeri”, a “construction and related business”. He also indicates that
he is a partner in a car dealing business “Iran Khodro No. 1 Sari Dealership”.
Finally the applicant states that he owns 100% of the construction business and
33.3% of the car dealership business.
II. The Impugned Decision
[5]
The Officer evaluates
all the submitted documentary evidence but is still not satisfied that the applicant
meets the requirements of the Act and as a result refuses the application.
Specifically, the Officer states to the applicant that:
[g]iven the discrepancies between your statements and the figures
provided in your documents, the lack of clarity in how your business
performance figures are compiled and presented and the lack of documentary
evidence to demonstrate that your business meets the minimum requirements of a
qualifying business, you have not satisfied me that you have business
experience as defined in the Regulations. Consequently, you have not
satisfied me that you are an entrepreneur and therefore eligible for a
permanent resident visa as a member of the entrepreneur class.
[6]
The applicant seeks
judicial review of the Officer’s decision.
III. Standard of Review
[7]
The question is whether
the First Secretary errs in his/her
factual assessment of the applicant’s business ownership. Therefore the
standard of review is reasonableness (Dunsmuir v. New Brunswick, [2008] SCC 9). And as mentioned in Dunsmuir,
at paragraph 161 “decisions on questions of fact always attract deference” and
“when the issue is limited to questions of fact, there is no need to enquire
into any other factor in order to determine that deference is owed to an
administrative decision maker”. Reasonableness remains the appropriate
standard of review in this case.
[8]
As pointed out also in
Dunsmuir, above, at paragraph 47, this Court is only concerned “mostly with the
existence of justification, transparency and intelligibility within the
decision-making process, whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”.
IV. Legislation
[9]
Pursuant to subsection
97(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations), the applicant was required to show that he meets the
definition of an “entrepreneur” in subsection 88(1) of the Regulations.
[10]
Under subsection 88(1)
an “entrepreneur” is a foreign national who, among other things, has “business
experience”. “Business experience” in respect of an entrepreneur, also defined
in subsection 88(1) as follows:
|
“business experience”, in
respect of
(b) an entrepreneur,
other than an entrepreneur selected by a province, means a minimum of two
years of experience consisting of two one-year periods of experience in the
management of a qualifying business and the control of a percentage of equity
of the qualifying business during the period beginning five years before the
date of application for a permanent resident visa and ending on the day a
determination is made in respect of the application; and
|
« expérience dans l’exploitation d’une
entreprise » :
b) s’agissant d’un entrepreneur, autre qu’un entrepreneur
sélectionné par une province, s’entend de l’expérience d’une durée d’au moins
deux ans composée de deux périodes d’un an d’expérience dans la gestion d’une
entreprise admissible et le contrôle d’un pourcentage des capitaux propres de
celle-ci au cours de la période commençant cinq ans avant la date où la
demande de visa de résident permanent est faite et prenant fin à la date où
il est statué sur celle-ci;
|
[11]
“Qualifying business”
is defined in subsection 88(1) as well:
|
“qualifying business” means
a business — other than a business operated primarily for the purpose of
deriving investment income such as interest, dividends or capital gains — for
which, during the year under consideration, there is documentary evidence of
any two of the following:
(a)
the percentage of equity multiplied by the number of full time job
equivalents is equal to or greater than two full-time job equivalents per
year;
(b)
the percentage of equity multiplied by the total annual sales is equal to or
greater than $500,000;
(c)
the percentage of equity multiplied by the net income in the year is equal to
or greater than $50,000; and
(d)
the percentage of equity multiplied by the net assets at the end of the year
is equal to or greater than $125,000. (entreprise admissible)
|
« entreprise
admissible » Toute entreprise — autre qu’une entreprise exploitée
principalement dans le but de retirer un revenu de placement, tels des
intérêts, des dividendes ou des gains en capitaux — à l’égard de laquelle il
existe une preuve documentaire établissant que, au cours de l’année en cause,
elle satisfaisait à deux des critères suivants :
a) le pourcentage des capitaux propres,
multiplié par le nombre d’équivalents d’emploi à temps plein, est égal ou
supérieur à deux équivalents d’emploi à temps plein par an;
b) le pourcentage des capitaux propres,
multiplié par le chiffre d’affaires annuel, est égal ou supérieur à
500 000 $;
c) le pourcentage des capitaux propres,
multiplié par le revenu net annuel, est égal ou supérieur à
50 000 $;
d) le pourcentage des capitaux propres,
multiplié par l’actif net à la fin de l’année, est égal ou supérieur à
125 000 $. (qualifying business)
|
[12]
Subsection 88(1) also includes,
but is not limited to, the definitions of such terms as “percentage of equity”,
“full-time job equivalents”, “net income”, “net assets”, and “net worth”.
[13]
Pursuant to subsection
97(2),
|
2) If a foreign national who makes an application as a member of the
entrepreneur class is not an entrepreneur within the meaning of subsection 88(1), the application shall be refused and no further assessment is
required.
|
(2) Si le demandeur au titre de la catégorie des
entrepreneurs n’est pas un entrepreneur au sens du paragraphe 88(1), l’agent
met fin à l’examen de la demande et la rejette.
|
V. Analysis
[14]
Having regard to the
documentary evidence submitted by the applicant, the Officer concludes that the
applicant does not meet the definition of an “entrepreneur” who has “qualifying
business” experience. Having reviewed the evidence and the decision, the Court
finds that the impugned decision satisfies the standard of reasonableness. The applicant
had to satisfy the Officer that he fully qualified under the Law; unfortunately
for him he failed to do so. In addition he has shown no error in the Officer’s refusal
to justify an intervention of this Court. It is not for this Court to
appreciate the applicant’s qualifications; this Court has only to verify the reasonableness
of the officer’s decision.
[15]
Seeing that the Officer
committed no reviewable error, the application for judicial review will be dismissed.
[16]
The
parties have submitted no question of general interest to certify, and there are
none
Indeed, to certify here.
Therefore, no question will be certified.
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