Date: 20030227
Docket: IMM-210-02
Neutral citation: 2003 FCT 251
BETWEEN:
IGOR POSTOLATI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
LINDEN J.A. (ex officio)
[1] This is an application for judicial review by Igor Postolati (the "Applicant") of a decision made by Diane Caldwell (the "Visa Officer") at the Canadian Embassy in Moscow, Russia. By letter dated November 27, 2001, the Visa Officer refused to approve the Applicant's application for immigration to Canada as an entrepreneur.
[2] Since 1992 the Applicant has operated a company in Moldova that sells, distributes parts for, maintains and services European, American and Japanese automobiles. With sales in excess of 1.9 million dollars, the business makes a substantial profit.
[3] In September 2000 the Applicant applied to immigrate to Canada as an entrepreneur. Along with his application, he filed a business plan for an auto repair shop.
[4] During his November 20, 2001 interview with the Visa Officer, the Applicant spoke through an interpreter. During his interview the Applicant demonstrated limited knowledge about the market in Canada for a garage/service station business. As a result the Visa Officer expressed her concern that the Applicant appeared to have done little independent research to determine if his proposed business would be feasible and how it would work. In response to these concerns the Applicant stated that, when he was in Toronto he had visited a number of garages that he could purchase. However, when he was questioned further about that the Applicant appeared to have little concrete information about any service stations available for purchase.
[5] Subsection 2(1) of the Immigration Regulations, 1978, S.O.R./78-172 (the "Regulations") defines an entrepreneur as 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; |
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; |
[6] The Visa Officer concluded that the Applicant did not meet the above definition for the following reasons:
Based on your description of the research undertaken in support of your business plan, 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. You were able to demonstrate only limited or no knowledge of the overall market situation, potential clientele, and competition in your chosen industry in Canada which demonstrated this lack of ability.
[7] Mr. Sherman, in his usually thorough and thoughtful way, contended that the Visa Officer made an error in law and that she misapprehended the evidence in such a way as to be reviewable.
[8] As for the definition of entrepreneur, Mr. Sherman contended that the Visa Officer wrongly used the word "would", implying the present sense, instead of the language of the Act, which is aimed at the future establishment of a business, not a particular business. In my view, the Visa Officer did not err in law, but correctly understood the definition.
[9] As for the standard of review, a Visa Officer's discretionary decision as to whether the Applicant is an entrepreneur within the meaning of the Regulations should not be reviewed simply because the Court might have reached a different conclusion. It is submitted that only a discretionary decision based on irrelevant considerations, or made arbitrarily or illegally may be subject to judicial review.
[10] Our jurisprudence has consistently held that courts must be deferential to discretionary decisions of Visa Officers. For example, in Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2 and To v. Canada, [1996] F.C.J. No. 696 (F.C.A.) support the principle that courts should not interfere with a Visa Officer's statutory discretion that has been exercised in good faith and in accordance with the principles of natural justice and where reliance has not been placed upon irrelevant or extraneous considerations.
[11] The Applicant argues that the Visa Officer failed to consider, or give proper weight to the following factors:
· he established and operated a successful business in Moldova for a number of years;
· on a recent visit to Toronto he attended a government seminar for immigrants who seek to do business in Canada and that he visited a number of garages where he spoke to garage personnel;
· he has a net worth of more than one million dollars (Canadian);
· he has registered a company in Ontario and opened a Canadian bank account;
· he is reasonably fluent in English;
· he has an 18-year-old Canadian daughter who lives in Canada; and
· he is affiliated with a company that imports and sells Canadian auto parts.
[12] The Applicant submits, in particular, that the Visa Officer erred by not giving enough weight to the Applicant's experience operating a business in Moldova. Furthermore, the Applicant submits that the Visa Offered erred by not considering that the Applicant would have two years in which to establish a business in Canada. The Applicant says that he answered the Visa Officer's interview questions in a manner that clearly established he meets the definition of "entrepreneur".
[13] The Respondent submits that the Visa Officer considered the Applicant's prior business experience in detail, but that it was properly within the Visa Officer's discretion to determine what weight to accord to that evidence.
[14] While the Applicant contends that the Visa Officer ignored section 23.1 of the Regulations which states that an approved entrepreneur is subject to terms and conditions of landing, including a two-year window in which to establish the proposed business, the Respondent submits that the in Chiu v. Canada (Minister of Citizenship and Immigration) (1996), 121 F.T.R. 39, Justice Simpson held that even though a follow-up assessment of the Applicant's business will be conducted, a Visa Officer must still be satisfied that, at the time of the interview, the Applicant meets the requirements of an entrepreneur.
[15] The case law makes it clear that myriad factors are to be considered when determining whether a prospective immigrant meets the definition of entrepreneur, but among the factors is the viability of the proposed business (see: Saadat v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 39 (F.C.T.D.). The Federal Court has also stated that a prospective immigrant's failure to conduct adequate research may forestall a finding that the business will be viable (see: Chiu v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L. R. (2d) 281 (F.C.T.D.); and Bakhshaee v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 196 (F.C.T.D.).
[16] Given the parameters of a judicial review application of this sort, it is not the role of this Court to conduct the Visa Officer's inquiry de novo. Based on the evidence contained in the record, I cannot conclude that it was unreasonable for the Visa Officer to conclude that the Applicant is not an entrepreneur within the meaning of subsection 2(1) of the Regulations.
[17] This application for judicial review should be dismissed, without costs.
"A.M. Linden"
Judge
Toronto, Ontario
February 27, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-210-02
STYLE OF CAUSE: IGOR POSTOLATI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, FEBRUARY 27, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LINDEN J.A. (ex officio)
DATED: THURSDAY, FEBRUARY 27, 2003
APPEARANCES BY: Mr. Irvin Sherman
Mr. Gary L. Segal
For the Applicant
Mr. Stephen H. Gold
For the Respondent
SOLICITORS OF RECORD: Mr. Irvin H. Sherman, Q.C.
Mr. Gary L. Segal
255 Duncan Mill Road
Suite 208
Don Mills, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030227
Docket: IMM-210-02
BETWEEN:
IGOR OSTOLATI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER