Date: 20030428
Docket: IMM-2057-01
Citation: 2003 FCT 525
OTTAWA, ONTARIO, this 28th day of April 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
IOURI IAKOVLEV
(YURI YAKOVLEV)
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under section 18.1(1) of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of a decision of the Second Secretary Immigration, Diane R. Caldwell ("Visa Officer") dated February 19, 2001 and communicated to Iouri Iakovlev ("the Applicant") on or about March 26, 2001, wherein the Visa Officer refused the application for permanent residence made by the Applicant. The Applicant seeks an order in the nature of certiorari quashing the decision and an order in the nature of mandamus requiring a different visa officer to reconsider the application of the Applicant in accordance with principles of fairness and in accordance with the provisions of the Immigration Act, R.S.C. 1985, c. I-2 ("Act").
Background
[2] The Applicant is a citizen of Russia. He applied for permanent residence as an entrepreneur and forwarded his application to the Canadian Consulate in Buffalo. The Embassy in Buffalo transferred the file to Moscow.
[3] The Applicant attended an interview at the Embassy of Canada in Moscow on January 18, 2001. Notes from the Visa Officer's interview were recorded in the Computer Assisted Immigration Processing System ("CAIPS").
[4] At the interview the Visa Officer questioned the Applicant as to his plans for Canada, his education, work experience, and business experience. The Applicant had provided the Visa Officer with a detailed business plan.
[5] The Applicant explained that he was going to invest in a hockey rink and school in Canada with a Canadian partner who was an experienced businessman. He was unable to provide details regarding the market, location zoning, finances and budget, rink construction, taxes and other technical concerns. At the interview the Applicant stated that his partner dealt with those details. His planned involvement would be to ensure the rinks were good for the school, the recruitment of instructors, and the supervision of instruction.
[6] The Visa Officer also asked the Applicant about the details of his employment history. Most relevant were his 12 years of experience playing professional hockey in Russia and his ownership and presidency of a hockey club in Russia.
[7] The Visa Officer was concerned that the Applicant's experience in Russia was not transferable to Canada and that the Applicant did not have sufficient ability to establish, purchase or make a substantial investment in a business or commercial venture in Canada, since he had not undertaken any independent research in support of his plan to invest in Canada.
The Visa Officer's Decision:
[8] The Visa Officer felt that the Applicant's partner would be managing the business while the Applicant would remain a mere investor. She refused the application for the following reason:
As explained at your interview, I am not satisfied that you would be able to successfully establish, purchase or make a substantial investment in a business or commercial venture in Canada. The fact that you have undertaken no independent research in support of your planned investment in a business in Canada demonstrates a lack of ability to do so successfully.
[9] The fact that the Applicant was unfamiliar with the independent research done on the investment, at least as regards technical and financial details, led the officer to believe that he lacked the ability to undertake the investment successfully.
Arguments:
Applicant's Submissions:
[10] The Applicant submits that the Visa Officer erred in law in refusing the application because she failed to take into account the totality of the evidence, made unreasonable inferences and considered irrelevant matters when she focussed on the Applicant's lack of knowledge of the specifics of the business proposal when considering the Applicant's capacity to participate in the management of the business in Canada.
[11] The Applicant submits that the focus of the Visa Officer's refusal and the issue for the Court's consideration is the Visa Officer's finding that the Applicant's business experience was not transferable to Canada and that she doubted his ability to participate in the business in Canada. The basis for the Visa Officer's refusal was the Applicant's lack of personal knowledge of the financial and technical aspects of the Canadian project, which led her to be concerned about the "transferability of his experience to Canada."
[12] The Applicant submits that his manner of proceeding to invest in Canada by obtaining a Canadian partner, and allowing that partner to do the majority of the work on the business plan, will likely result in a more successful business venture for the Applicant. It is what any prudent businessperson would do in the circumstances.
[13] It is the Applicant's submission that there is nothing in the definition of "entrepreneur" which requires that the Applicant plan the business venture or be aware of all aspects of the planning behind the business plan. His lack of knowledge of certain details is not rationally connected to his ability to participate in the business either as an investor or a manager. The Visa Officer erred in basing her decision on these matters.
[14] The Applicant submits that, assuming there was no concern as regards his ability to establish and invest in the venture, the Immigration Regulations, SOR/78-172 ("Regulations") merely require that the Applicant be involved in some aspect of the management of the business. Management implies that the person is merely involved in some way in running the business and allows a broad range of possible positions in the company. In the case at bar, the Applicant has proven that he has expertise in running and managing several successful business ventures, including a Russian hockey team. The Applicant intends to be involved in running the hockey school in Canada and will provide connections and contacts that will allow the school to obtain well-known hockey players to teach there. This is a position of responsibility that qualifies as management.
[15] In order to fall under the entrepreneur category, the Applicant submits that it is not necessary to be involved in the financial or other technical aspects of the business. The Applicant relies on Hui v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 96 in which the Federal Court of Appeal concluded that the definition of entrepreneur did not incorporate the requirement that the applicant have a proven track record. The Applicant also relies on Kabir v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 171 where the Court ruled that it was an error for the vsa officer to put too much emphasis on knowledge of the construction industry and the Canadian tax system under the entrepreneur category.
Respondent's submissions:
[16] The Respondent submits that the Court should not intervene in the exercise of a statutory discretion if it has been exercised in good faith, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose (To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No.696 (C.A.)(QL); Kuo-Ting v. Canada (Minister of Employment and Immigration), [1997] F.C.J. No. 569 (C.A.)).
[17] The Respondent submits that the very wording of the definition of "entrepreneur" makes it clear that an applicant's ability to establish a business in Canada, as well as his knowledge of and research into the particular market and the particular business that the Applicant is proposing to enter, are relevant considerations. (Dina v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1304 (T.D.)(QL); Dhamee v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 109 (T.D.)(QL); Ng v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 346 (T.D.)(QL); Cho v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 808 (T.D.)(QL); Hao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 296 (T.D.)(QL); Zhou v. Canada (Minister of Citizenship and Immigration), [1996]_F.C.J. No. 1566 (T.D.)(QL); Prasad v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 453 (T.D.)(QL)).
[18] Questioning the Applicant about a viable, researched business plan is within the Visa Officer's jurisdiction (Chiu v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1460 (T.D.)(QL); Saadat v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No.39 (T.D.)(QL); Bakhshaee v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1002 (T.D.)(QL)). The Applicant was unable to answer satisfactorily the Visa Officer's questions in this regard. The Visa Officer has the right to ask the Applicant for any evidence that would indicate that he has done some research into his proposed business venture. Given his lack of knowledge in this area, the Visa Officer had a sufficient basis to exercise her discretion against granting the application. The Applicant's knowledge of the proposed business and his preparation for the venture are clearly relevant.
Issues:
[19] Did the Visa Officer err in law in refusing the application because she failed to take into account the totality of the evidence, made unreasonable inferences and considered irrelevant matters when she focussed on the Applicant's lack of knowledge of the specifics of the business proposal when considering the Applicant's capacity to participate in the management of the business in Canada?
Analysis:
Statutory Framework:
[20] Subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172, defines an entrepreneur as follows:
| "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 commencial venture; |
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« entrepreneur » désigne un immigrant a) qui a l'intention et qui est en mesure d'établir ou d'acheter au Canada une entreprise ou un commerce, ou d'y investir une somme importante, de façon à contribuer de manière significative à la vie économique et à permettre à au moins un citoyen canadien ou résident permanent, à part l'entrepreneur et les personnes à sa charge, d'obtenir ou de conserver un emploi, et b) qui a l'intention et est en mesure de participer activement et régulièrement à la gestion de cette entreprise ou de ce commerce; |
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Standard of Review
[21] There is some debate in this Court as to the appropriate standard of review to apply to decisions of visa officers.
[22] Some judges have applied a reasonableness simpliciter approach following Reed J. in Hoa, supra. In Hao, supra, Reed J. applied the pragmatic and functional approach set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and concluded that, because there is no privative clause and there is a statutory right of appeal, the balance is tipped towards a standard of reasonableness simpliciter.
[23] In Yin v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 985 (T.D.), O'Keefe J. analysed the standard of review of visa officer decisions using the pragmatic and functional approach as follows at paragraph 20:
1. There is no privative clause and there is no requirement that leave be granted before a judicial review can proceed .... These facts suggest a lower level of deference.
2. The decision maker in this case is an immigration officer, as designated by the Minister pursuant to subsection 109(2) of the Act. Because this immigration officer is stationed outside of Canada, she is referred to as a visa officer. A visa officer processes visa applications on a regular basis, and has considerable expertise in this area. These factors suggest greater deference to a visa officer's decision.
3. Under section 11 and Schedule I of the Immigration Regulations, 1978, the visa officer must determine whether or not the applicant qualifies to obtain a visa to enter Canada. A visa officer has considerable discretion but he or she must be guided by Schedule I. In my view, this suggests that the visa officer's decision is entitled to greater deference by the Court, but not total deference.
4. The nature of the problem in this case is the determination of facts and the application of these facts to the regulatory guidelines. Thus, the question is one of mixed fact and law and as such, a level of deference akin to reasonableness simpliciter is appropriate.
[24] O'Keefe J. thus determined that the standard of review for a visa officer's decision on an application for permanent residence status is reasonableness simpliciter.
[25] However, there is another line of reasoning that applies the much more stringent standard of review as set out in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2. In Kalia v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 998 (T.D), MacKay J. applied Maple Lodge Farms Ltd., supra. He wrote the following at paragraph 8:
In my view the standard of review of a discretionary decision of a visa officer in assessing experience of an intended immigrant in relation to a particular occupation is well settled. In accord with the decision of the Supreme Court of Canada in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, a court will not intervene in regard to the exercise of discretion vested by statute merely because the court might have exercised the discretion differently if it had been charged with the responsibility. Where it has been exercised in good faith, without reliance on irrelevant or extraneous considerations the courts should not interfere. Moreover, the decision in this case is essentially one of fact (see Mahoney J.A. for the Court of Appeal in Lim v. Canada (Minister of Employment and Immigration), (1991) 121 N.R. 241, 12 Imm L.R. (2d) 161, [1991] F.C.J. No. 8 (QL)(C.A.)). Where the decision in question is one of fact this Court will intervene only if it concludes the decision is patently unreasonable or in other words, as provided in s-s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, where the decision is based on an erroneous finding of fact made in a perverse or capricious manner. (See: McKeown J. in Sharma v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1131, [2001]_F.C.J. No. 1562 (QL)(T.D.)
[26] The Federal Court of Appeal has also applied Maple Lodge Farms Ltd., surpa, as the appropriate standard of review in visa officer's decisions. It stated in To, supra, at paragraph 3:
Here the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where 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, the courts should not interfere.
[27] In addition, the Court has the power to review the decision by the authority of the Federal Court Act, R.S.C. 1985, c F-7 subsection 18.1(4) which states:
| (4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; ...
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(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_: a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer; b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; ... |
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[28] In particular, paragraph 18.1(4)(d) allows this Court to intervene if the determination was made in a perverse or capricious manner or without regard for the material before the board or tribunal.
[29] On the present facts, whether the Court applies and reasonableness simpliciter standard or the patently unreasonable and perverse and capricious standard, the Applicant should succeed.
Analysis
[30] The Visa Officer's concern appears not to have been over the Applicant's intention or ability to invest in the proposed venture, or over the economic viability of the venture itself as expressed in the business plan. Her concern appears to have been focussed upon the Applicant's lack of independent research and his inability to answer detailed financial and technical questions about the project. She equated these deficiencies directly with a lack of ability on the part of the Applicant to either invest successfully in the business or to provide active and ongoing participation in management. Such a direct connection is perverse and capricious.
[31] The Visa Officer erroneously required the Applicant to have personal knowledge and to have independently researched his planned business venture. This is not a requirement of the Act. To require it in the context of the Applicant's case was a perverse reading of the Regulation governing the entrepreneurial definition. Such a decision also ignored the business plan provided by the Applicant and the realities of the venture that the Applicant proposed to undertake with his Canadian partner.
[32] The Applicant is a successful businessman in Russia who has expertise in playing and instructing hockey. The Applicant met an experienced and successful Canadian businessman while he was visiting Canada. Together they decided to open a business that would instruct hockey of a high calibre. Both parties would invest capital. The Applicant's role would be to bring his hockey expertise and hockey connections to the business. Because the Canadian partner was experienced in doing business in Canada, the Applicant deferred to the expertise of his partner on all matters concerning the more technical and financial aspects of the business. They were, however, all detailed in the business plan submitted by the Applicant.
[33] The Visa Officer, however, decided that the Applicant's lack of independent research in support of his planned business in Canada demonstrated a lack of ability to successfully establish, purchase or make a substantial investment in a business or commercial venture in Canada. The Visa Officer's affidavit and cross-examination indicate that this finding was based on the Applicant's inability to answer questions regarding the financing, budget, and more technical details surrounding the business. The Respondent submits that the ability to establish a successful business requires personal knowledge of business practices in Canada as well as knowledge of and research into the particular market that the Applicant is proposing to enter.
[34] I disagree with the Respondent that the Applicant's lack of independent research and knowledge indicated an inability to successfully establish a business in Canada. This was an irrelevant consideration in the context of this case.
[35] The cases relied upon by the Respondent can be distinguished from the case at bar because the applicants in those cases were not involved with a partner with expertise in business in Canada and did not present a thorough and viable business plan to this effect.
[36] Most significant is the fact that none of the cases were situations where the applicants had entered into a business venture with a successful Canadian businessman. In the present case it makes perfect sense that the partner who lives in Canada and who has considerable experience doing business here is the one to take control of the research and planning with respect to the general project and the details of finance and planning. The Applicant's expertise and proposed contribution to the business are, however, equally important. He will be in charge of the hockey aspects of the business. He has experience in this area and connections that will be crucial to the long-term success of the business. The Act merely requires an ability to manage some aspect of the business. I agree with the Applicant that management does not necessarily involve operational and financial aspects of the business. In his case, the Applicant's proposed role of running the hockey and educational side of the business fits under the management requirement of the definition of entrepreneur.
ORDER
THE COURT HEREBY ORDERS THAT:
1. The application for judicial review is allowed, the February 19, 2001, decision is set aside and the matter is remitted for reconsideration by a different Visa Officer.
2. No question will be certified.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2057-01
STYLE OF CAUSE: IOURI IAKOVLEV (YURI YAKOVLEV) v. MCI
DATE OF HEARING: March 27, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER BY: Justice James Russell
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Ms. Mielka Visnic
For the Respondent
SOLICITORS OF RECORD:
Mr. Lorne Waldman Barrister and Solicitor
281 Eglinton Ave East Toronto, Ontario
M4P 1L3
For the Applicant
Ms. Mielka Visnic Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent
FEDERAL COURT OF CANADA
Date:20030428
Docket: IMM-2057-01
BETWEEN:
IOURI IAKOVLEV
(YURI YAKOVLEV)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER