Date: 20010130
Docket: IMM-6262-99
BETWEEN:
URBAID-UR RAHMAN DHAMEE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] The applicant is a citizen of Pakistan who has been working in Saudi Arabia since 1974 as the showroom manager of different retail outlets which market Sony electronic products.
[2] The applicant now seeks judicial review of the visa officer's refusal of his application for permanent residence in Canada in the entrepreneur category for the establishment of an electronic item retail outlet in Mississauga, Ontario.
[3] The visa officer acknowledged the applicant's experience and competence as a manager of the retail electronic products operation in Saudi Arabia. Also, the respondent does not seriously question the applicant's financial resources to establish a similar operation in Canada.
[4] However, the visa officer was not satisfied that the applicant had adequately researched the economic viability of his strategy to aim for high turnover with lower profit margins. She expressed these concerns in her letter of decision:
| When questioned about your knowledge of the Canadian market, you indicated that you had not done any research or market analysis and that you have not visited Canada. You indicated that your friend had given you assurances that you would have no difficulties. ... You informed me that you have no idea of the costs associated with purchasing products in Canada and other related costs or who your competitors would be. |
[5] This application for judicial review is based substantially on the applicant's affidavit evidence. No affidavit was filed by the visa officer. However, there appears to be no significant, if any, contradictions between the applicant's version of the interview and the CAIPS notes. In these circumstances, where the respondent does not rely on the CAIPS notes to contradict the applicant's affidavit, the evidentiary impact of no responding affidavit, as thoughtfully analysed by my colleague Justice Pelletier in Tajgardoon v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1450 (QL) (T.D.), does not apply.
[6] A review of the tribunal record discloses that the only relevant documents filed by the applicant were a statement of his significant portfolio holdings and some photographs of the applicant at a Sony outlet in Saudi Arabia and with Sony officials at other meetings.
[7] According to his affidavit, the applicant advised the visa officer that he had obtained some information from a friend in Canada who operates a computer store and two clothing boutiques. This friend had assured the applicant that he would introduce him to certain franchise companies, consultants and accountants to assist in establishing his business. The applicant also advised the visa officer that he had "checked quite a few electronics stores" during trips to San Francisco and New York to attend Sony conferences. Finally, the applicant indicated that he would invest $150,000, including $10,000 for the first year rent of a 100-square-metre store "in a well-established shopping mall". The visa officer's skepticism concerning a serious business plan may have been based on the applicant's intention to operate on "high turnover and lower profit margins" in a relatively small store. There is nothing in the tribunal record to indicate that the plaintiff had any documentary support for this information or for any other market research for his project.
[8] In my view, it was open to the visa officer to question the extent and seriousness of the applicant's research for the establishment of his retail store in Canada. For the visa officer, the applicant's competence as a manager did not necessarily translate into ownership or entrepreneurial skills. If the applicant is qualified to meet the legislative test of entrepreneur on the basis of his work experience in Saudi Arabia, he appears at the very least to have been less than well-prepared to satisfy the visa officer of his ability to establish a business in Canada which will make a significant contribution to the economy.
[9] The applicant also argued that the visa officer erred in not assessing his ability to "... purchase or make a substantial investment" in Canada after concluding that he had not demonstrated his capacity to establish a business in this country. The legislative definition of "entrepreneur" does include a person "... who intends and has the ability to establish, purchase or make a substantial investment ..." in Canada. However, there is no information in the record to suggest that the applicant ever indicated his intention to purchase or make an investment in a business in Canada. His presentation focussed solely on his intention to establish a retail operation in a shopping centre.
[10] Justice Décary, sitting ex officio in the Trial Division, addressed this issue squarely in Bakshaee v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 196 at paragraph 4: "An applicant may well decide to submit information with regard to only one of the three options in the definition, in which case the visa officer need not to examine the other two." (See also Majeed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 742 (QL) (T.D.).)
[11] Accordingly, in view of the applicant's failure to establish any reviewable error in the decision of the visa officer, this application for judicial review will be dismissed. The applicant, should he decide to re-apply for permanent residence, will want to keep in mind the visa officer's concerns concerning the insufficiency of his market research and analysis. Neither party suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
January 30, 2001