Date: 20030908
Docket: IMM-3931-01
Ottawa, Ontario, this 8th day of September, 2003
Present: The Honourable Justice James Russell
BETWEEN:
AMJAD JAVED WADHERA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of a Canadian Visa Officer in London, England (the "Visa Officer") dated July 9, 2002, wherein the Visa Officer refused the application of Amjad Javed Wadhera (the "Applicant") for permanent residence (the "Decision"). The Applicant seeks an order quashing the Decision and directing that a redetermination be made by a different visa officer.
BACKGROUND
[2] The Applicant submitted his application to the Regional Processing Centre ("RPC") in London, England on April 10, 2001. He indicated on the application form that he was the owner of M/s. Haroon Associates Surveyors and M/s. Unicorn International Surveyors, both located in Lahore, Pakistan.
[3] The Applicant was advised that he had failed to demonstrate to the Visa Officer that he met the requirements of the definition of an entrepreneur as described in s. 2(1) of the Immigration Regulations, 1978:
In my opinion, you do not meet this definition. You have conducted your business in Pakistan where you have not filed accurate tax returns. The records shown by Sidat Hyder Morshed Associates (Pvt) Limited state that you have not kept proper invoices or an accounting record. You have not shown you have previous experience which would satisfy me that you meet the definition. Although you have met with franchise sellers in Canada, you have not conducted any independent research into the viability of franchise schemes. You demonstrate a level of naïveté and lack of sophistication in business which does not satisfy me that you meet the definition.
...
In addition, I have examined the document you produced to show you have a diploma in engineering. I believe it to be fraudulent and have retained the document under section 110(2)(c) of the Immigration Act. I have determined that you do not meet the requirements for immigration to Canada in that you have come within the inadmissible class of persons described in paragraph 19(1)(c.1) of the Immigration Act. You have committed an act or omission that constitutes an offence under the laws of the place where the act or commission occurred, to wit, using false documents, which, if committed in Canada, would constitute an offence for which the maximum term of imprisonment of ten years or more may be imposed.
[4] With respect to his business experience, the Visa Officer questioned the Applicant about how he had established his existing business in Pakistan. The Visa Officer noted, among other things, a disparity between tax documents and accounting figures in a business performance assessment prepared by Sidat Hyder Morshed Associates (P. v. T.) Limited, management consultants. The assessment stated that the income estimated was not in agreement with tax returns. The assessment also noted an absence of proper invoices or an accounting record. The assessment further indicated that the Applicant was responsible for the business and all administrative and financial affairs. The Visa Officer advised the Applicant that it was questionable that the experience gained in a business environment where he did not keep proper records or file accurate tax returns was transferable to the Canadian market place.
[5] The Visa Officer asked the Applicant about his plans for Canada. The Applicant indicated that, in his visit to Canada in February, 2001, he had attended an Ontario business seminar and had met with two franchise companies, and that his wife's brother was in Canada.
[6] He said he had considered purchasing a Petro-Canada franchise, which would cost $300 000. Based on his documents, the Applicant's net worth was $85 000. He had not done any independent research on the viability of the franchise he was considering.
[7] The Applicant had also met with a convenience store franchise seller. The Visa Officer expressed concerns that the Applicant might not have sufficient income to support himself in that business. The Visa Officer noted that the Applicant did not know how much interest he might be charged on a loan.
[8] The Visa Officer requested more documents relating to tax payments and, in particular, additional documents relating to the tax paid at source to his tax account. This topic was discussed at length. The Applicant was advised that this might reflect on his ability to meet the definition of entrepreneur. However, the additional documents received did not satisfy the Visa Officer's concerns.
[9] Before the end of the interview, the Visa Officer also reminded the Applicant of her concerns about the education document he had submitted. After the interview, she examined the document with the aid of reading glasses. On the basis of several disparities, it was her opinion that the document was not genuine.
PERTINENT LEGISLATION
[10] Subsection 2(1) of the Immigration Regulations, 1978 states:
"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.
ISSUES
[11] The Applicant raises the following issues:
Did the Visa Officer restrict the definition of entrepreneur, as that terms is defined in the Immigration Regulations, in assessing the previous business experience of the Applicant?
Did the Visa Officer ignore the documentary evidence before her with respect to the intention and ability of the Applicant and the efforts he had made in researching business opportunities in Canada?
Did the Visa Officer communicate her concerns to the Applicant with respect to his diploma and did she give him an opportunity to disabuse her of those concerns?
If the Visa Officer did give the Applicant an opportunity to disabuse her of her concerns with respect to the Applicant's educational qualifications, was her determination relevant to the success or failure of the application?
STANDARD OF REVIEW
What is the appropriate standard of review?
[12] I will first determine the standard of review applicable to the Visa Officer's Decision. This Court has held that the decision of a visa officer is discretionary in nature. Even if I were to find that I may have reached a different conclusion than the Visa Officer, I am not permitted to intervene unless the Visa Officer acted in a patently unreasonable manner.
[13] In Al-Rifai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1703 (Fed. T.D.), Beaudry J. indicated as follows:
[para. 29] I adopt the principles in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (F.C.A.) (QL) and Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C.J. No. 3, 2002 SCC 1, of patently unreasonableness in discretionary decisions from the VO.
[para. 30] Turning to the substantive submissions of the applicant, it is important to note that the ability of the Court to intervene in the decisions of visa officers is very limited. The Court has so stated on several occasions. In Skoruk v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1687, 2001 FCT 1220, Nadon J. (as he then was) notes that the standard of review with respect to administrative decisions involving the exercise of statutory discretion is that laid out in Maple Lodge Farms Ltd., supra. If the discretion is exercised in good faith and in accordance with the principles of natural justice, a court will not interfere. That standard applies to the decisions of visa officers.
[14] In the Federal Court of Appeal's decision of Wang v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 351, Linden J. confirmed this standard of review:
[para. 6] Our jurisprudence holds the standard of review for this type of administrative decision is the test from Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 which teaches that a court should not interfere "[w]here the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose" (see: Skoruk v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1220; Chen v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 555, 2001 FCT 330; Al-Rifai v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1236; and Jang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1575, 2001 FCA 312).
ANALYSIS
[15] The Applicant submits that the Visa Officer fettered her discretion and unlawfully restricted the definition of entrepreneur by importing a requirement that the Applicant be proficient in
bookkeeping.
[16] The definition of entrepreneur is set out in s. 2(1) of the Immigration Regulations. The Applicant submits that the Respondent conceded that the Applicant had owned and operated a business for over thirty years, and that he had gained business experience over that time.
[17] The Applicant submits that in order to assist Visa Officers in making a determination as to whether someone meets the definition of entrepreneur under the Immigration Regulations, the Respondent has published a set of criteria for Visa Officers to consider in their assessment.
[18] The Applicant submits that the Visa Officer did not make her determination in accordance with her own department's express policy, but rather, placed undue emphasis on the Applicant's bookkeeping abilities. In addition, the Visa Officer made a determination that the Applicant's business experience was of no value to the Canadian market.
[19] In so doing, the Applicant submits that the Visa Officer fettered her discretion by unduly and unlawfully restricting the definition of an entrepreneur, as that term is defined in the Immigration Regulations, and by importing a requirement that the Applicant be proficient in bookkeeping, thereby committing a reviewable error (Tam v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 568).
[20] As regards the Applicants prior business experience, the Visa Officer only raises three issues in the Decision:
1. "You have conducted your business in Pakistan where you have not filed accurate tax returns";
2. "The records shown by Sidat Hyde Morshed Associates (P. v. T) Limited state that you have not kept proper invoices or an accounting record.";
3. "You have not shown you have previous experience which would satisfy me that you meet the definition".
[21] As reasons go, these look decidedly thin. The third reason is no reason at all; it is merely a bald assertion that the Applicant has not met the definition of entrepreneur to the satisfaction of the Visa Officer. It doesn't explain, for instance, why the Applicant's years of business experience in Pakistan have not satisfied the Visa Officer concerning his ability to establish a commercial venture in Canada that will make a significant contribution to the economy and create employment opportunities for other Canadians or permanent residents.
[22] The only real reasons given are that the Applicant did not file accurate tax returns and he did not keep a proper accounting record in Pakistan. These matters are explained in the tribunal record. It appears that the Applicant was keeping two sets of books and filing inaccurate returns because he was doing business in a corrupt environment. This may have influenced the Visa Officer against the Applicant, and it is certainly deplorable conduct from a Canadian perspective, but it does not adequately explain or justify why the Applicant fails to meet the entrepreneur definition. I agree with the Applicant that this is akin to importing requirements not contained in the definition.
[23] In cross examination, the Visa Officer said that she recognized that the Applicant had experience in business "but not the type of experience that would allow him to meet the definition." What the Visa Officer appears to have meant by this was that doing business in a corrupt environment in Pakistan did not necessarily demonstrate that the Applicant had the necessary experience to do business in Canada.
[24] While this might look dubious as a rationale for rejecting the application, it cannot be viewed in isolation. The Visa Officer's doubts were compounded by other issues and the Decision as a whole is based upon other material considerations.
[25] As regards the forward looking aspect of the Decision, the Visa Officer points out as follows:
1. "Although you have met with franchise sellers in Canada, you have not conducted any independent research into the viability of the franchise schemes"; and
2. "You demonstrate a level of naïveté and lack of sophistication in business which does not satisfy me that you meet the definition."
[26] The Applicant says that this assessment is unfair and does not adequately address the Applicant's chances of participating in a viable business in Canada. The Applicant's inquiries were preliminary and he had not reached any conclusions about which business to pursue. The Applicant says there is no requirement in the entrepreneur definition that he conduct independent research or that he have a clearly defined business plan at this stage.
[27] While I agree with the Applicant in this regard, it doesn't really convince me that this Court should interfere with the Decision. The onus is on the Applicant to satisfy the Visa Officer that he meets the various aspects of the definition of entrepreneur. This Visa Officer was just not satisfied, on the basis of the information provided, that the Applicant could establish a viable business in Canada.
[28] The CAIPS notes show that the Visa Officer was troubled by this issue in several ways:
1. The Visa Officer was not convinced on the evidence presented by the Applicant that he had the financial wherewithal to carry out the preposed business plans in Canada;
2. The Applicant said he would need a loan but didn't know what he might be charged in interest;
3. The Applicant had spent little time with, and had little information about, the franchises he was considering and he had not acquired any kind of independent assessment;
4. The Applicant appeared to have accepted at their face value the franchisee's words to the effect that it was a good business.
[29] The Applicant argues that this assessment was unfair, hypothetical and that these matters are not formal, legal requirements under the definition. However, they cannot be said to be irrelevant considerations for a Visa Officer who is trying to gauge the Applicants' business abilities.
[30] In reply examination by counsel for the Respondent, the Visa Officer summed it up as follows:
1. The general concern was that I didn't feel that the applicant had the type of experience. I felt he had experience, but not the type of experience that would allow him to meet the definition.
2. I also looked at what the plans were in Canada, and I didn't feel that he had been very thorough in finding out how he could establish a business in Canada.
[31] While I might have come to a different conclusion on this point, this does not mean I can interfere with the Visa Officer's Decision. She looked at various factors (none of them irrelevant) and decided that, on the weight of the evidence, she was not convinced that the Applicant had satisfied the definition and, in particular, that he could establish a viable business in Canada. Other aspects of the Decision may be questionable but, in my opinion this was a sufficient basis to deny the application for permanent residence.
[32] This was the crux of the Decision. Anything the Visa Officer says about the authenticity of the Applicant's qualification is "in addition." The diploma issue was not determinative and its relevance was peripheral.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review be dismissed.
2. There are no questions for certification.
"Justice Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3931-01
STYLE OF CAUSE: AMJAD JAVED WADHERA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY AUGUST 5, 2003
REASONS FOR ORDER
AND ORDER BY: RUSSELL J.
APPEARANCES BY: Mr. Fernand Majid
For the Applicant
Ms. Kareena Wilding
For the Respondent
SOLICITORS OF RECORD: Mr. Fernand Majid
Law Offices of Fernand A. Majid
53 Village Centre Place, Suite 100
Mississauga, Ontario L4Z 1V9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030908
Docket: IMM-3931-01
BETWEEN:
AMJAD JAVED WADHERA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER