Date: 20030410
Docket: IMM-79-02
Neutral citation: 2003 FCT 422
Toronto, Ontario, Thursday, the 10th day of April, 2003
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
NARENDRAKUMAR KANTILAL GANDHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Ghandi operates a small bakery and convenience shop in Navsari, a city in the Gujarat province of India. It appears to be a successful operation. He would like to come to Canada and open a bakery in the Brampton area. In 2001, he applied for permanent residence in Canada as a "self-employed person" on the strength of his experience as a merchant and baker. A visa officer in Singapore assessed his application and found that Mr. Gandhi had not met the definition of a "self-employed person" as set out in the Immigration Regulations, s. 2(1). His application for permanent residency was denied.
[2] Mr. Gandhi started working in the family business in 1976. He took over from his father in 1985 and has been in charge ever since. He claims to have saved $100,000 towards the establishment of a bakery in Canada. Clearly, it was not Mr. Gandhi's experience or success in his current business that troubled the visa officer. Rather, the officer was not satisfied, after having interviewed him, that Mr. Gandhi had "the necessary managerial and business ability and experience" to establish a commercial venture in Canada. The Regulations specifically define a "self-employed person" as someone "who intends and has the ability to establish . . . a business in Canada that will create an employment opportunity for himself and will make a significant contribution to the economy . . . of Canada." The officer was not persuaded, notwithstanding Mr. Gandhi's ability to run a small shop in Navsari, that he had the capacity to establish a successful enterprise in a very different marketplace in Southern Ontario.
I. Issue
[3] There is only one issue in this case. The question is whether the visa officer made a serious error in concluding that Mr. Gandhi had not satisfied the criteria for a "self-employed person" under the Regulations.
A. The Factual Dispute
[4] Mr. Gandhi and the visa officer who reviewed his application disagree on a number of important matters. Their affidavits are strikingly different.
(1) The Navsari Business
[5] Mr. Gandhi says that he showed the officer photographs of his shop, described to the officer how he made his cakes and where his oven was. The officer says Mr. Gandhi may have shown him photographs, but his notes from the interview indicate that "there are no cakes for sale and no space evident where one might display such items." More importantly, however, the officer specifically states that Mr. Gandhi could not explain the details of the baking operation or describe where his oven was.
[6] Mr. Gandhi says that he informed the officer that he reviewed financial accounts of his business on a regular basis. The officer says that Mr. Gandhi told him that he did not keep any formal business records. He did not supply any tax documents or bank records, and he could not explain how, if he were to establish a business in Canada, he would overcome his lack of experience in finance and management.
(2) The Proposed Canadian Business
[7] Mr. Gandhi says that he showed the officer a detailed business plan for his future Canadian bakery. He also says that the officer did not ask him any questions about the drafting of that plan. By contrast, the officer says that Mr. Gandhi was not at all familiar with the contents of the business plan or the commercial realities of operating a business in Canada. According to the officer's notes, Mr. Gandhi told him that the plan was prepared by his father-in-law and a Canadian friend.
[8] Mr. Gandhi says that he did considerable research into his business proposal and the operation of Canadian bakeries. The officer says that Mr. Gandhi told him that he had not done any research personally.
B. The Court's Role in a Factual Dispute
[9] In a situation such as this, it is tempting to review the opposing affidavits, analyze their likely veracity and decide the application accordingly. However, this is not the Court's task. Rather, I must decide whether the applicant has established that the decision-maker has made an error of such gravity that the Court's intervention is required. The affidavits are helpful in that exercise, of course, but they must be put in context. These documents shed light on the process leading to and the foundation for the decision in issue. But there is usually more to judicial review than measuring the persuasiveness of opposing affidavits. One must consider the statutory and regulatory framework within which the decision-maker was operating and examine the totality of the materials submitted by the parties, of which the affidavits form an important part. Applying the governing standard of review, the Court must then determine whether it must intervene.
[10] Simply put, it is not necessary for me to say whether one affiant is more credible than the other. I prefer to address the larger question whether, considering all of the relevant factors and the materials before me, the applicant has established that the visa officer made a serious error in his case.
C. Was a Serious Error Made?
[11] In my view, there is no basis for concluding that the visa officer made a serious error in deciding Mr. Gandhi's application. He appears to have applied the appropriate regulatory criteria, considered the evidence put before him by Mr. Gandhi, questioned Mr. Gandhi in person about relevant matters, presented Mr. Gandhi with his concerns about the merits of his proposal and offered him an opportunity to respond to those concerns.
[12] The principal concern of the officer was whether Mr. Gandhi had the necessary business acumen to establish and operate a going concern in Canada. The main evidence that Mr. Gandhi tendered on that issue was the business plan. The visa officer's notes describe the business plan as "short" and "pro forma". He concluded that it did not contain sufficient details on such matters as costs, labour issues, property rental, target markets, competition, or a contingency plan. The applicant failed to assuage the officer's concerns during the interview. I have reviewed the business plan and cannot conclude that the officer was mistaken in his assessment.
[13] Based on the foregoing, I cannot conclude that the officer made a serious error in determining that Mr. Gandhi failed to meet the regulatory criteria for a "self-employed person". Accordingly, this application for judicial review must be dismissed. No question of general importance was proposed for certification and none is stated.
JUDGMENT
IT IS HEREBY ADJUDGED that this application for judicial review is dismissed. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-79-02
STYLE OF CAUSE: NARENDRAKUMAR KANTILAL GANDHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, APRIL 7, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
AND JUDGMENT BY: O'REILLY J.
DATED: THURSDAY, APRIL 10, 2003
APPEARANCES BY: Ms. Mirit Gevantschniter
For the Applicant
Mr. Greg G. George
For the Respondent
SOLICITORS OF RECORD: Green and Spiegel
Barristers & Solicitors
Toronto, ON
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030410
Docket: IMM-79-02
BETWEEN:
NARENDRAKUMAR KANTILAL GANDHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT