Docket: IMM-4182-01
Ottawa, Ontario, this 7th day of April, 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
EL-SAYED, HESHAM
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Carol K. Jong, a visa officer at the Canadian High Commission in London, dated August 6, 2001, wherein the applicant's application for permanent residence as an investor was refused.
[2] After I examined the documentary on file, except for the new evidence filed by the applicant, found at paragraphs 9 and 10 of its memorandum of fact and law, which was not before the designated visa officer, and heard the parties' submissions, I was able to determine that this judicial review raises matters related to factual issues which relate to the basis of the exercise of the visa officer's discretion.
[3] To better understand the context of the arguments, it is important to refer to the definition of an investor as it is set out in section 2(1) of the Immigration Regulations, 1978 ("Regulations"):
"investor" means an immigrant who
(a) has successfully operated, controlled or directed a business,
(b) indicated to the Minister, in writing, that they intend to make an investment or have made an investment, and
(c) has a net worth, accumulated by their own endeavours, of at least $800,000.
[4] The visa officer determined that the applicant failed to meet this definition of investor based on her insatisfaction that the applicant operated, controlled or directed a business or commercial undertaking, and did not meet the financial requirements outlined in section 2(1).
[5] In assessing the applicant, the visa officer considered the applicant's interest and involvement in Arab Company for Metal Turnery and Engineering and in El-Mohandes for Trade and Engineering, both of which the applicant owns with his two half-brothers. The visa officer also reviewed his participation in Hesham Mohamed Issmat & Co., the new car maintenance business which he and his wife started in September 2000.
[6] On his application, Mr. El-Sayed indicated that he was responsible for the technical part of the activities as well as the financial part, such as managing the accounts receivable and dealing with financial institution, and the administration part like supervising the staff, hiring and firing the employees. The applicant also indicated that he negotiated with the material suppliers, supervised the maintenance department, managed most day-to-day operations of the workshops, and decided the wages and salaries of the employees.
[7] The visa officer noted the above information and therefore accordingly interrogated the applicant on these allegations.
[8] I considered the applicant's argument relatively to a decision of Justice Rothstein in Chen v. Canada (M.E.I.), (1993), 20 Imm. L.R. (2d) 290, that the visa officer was vague in her refusal letter and did not assess each aspect (whether the applicant had successfully operated or controlled or directed a business) separately to determine whether the applicant was an investor, and consequently, in failing to do so, the visa officer committed an error of law.
[9] I am of the view that the visa officer did not need to make a specific and clear distinction between the applicant's experience in each criteria, as long as the general conclusion could be clearly drawn from the assessment. I think that the questions asked by the visa officer addressing her concerns and the answers given by the applicant were specific and covered enough subject-matter for the visa officer to determine that the applicant did not do what he alleged he did in his written application and therefore did not qualify as either having operated, controlled, nor directed a business. A close reading of the notes of the Visa Officer and of her letter to the applicant, clearly indicates that the necessary experience in each concept of the definition of investor was not there to conclude that he had met the necessary element to be recognize as an investor.
[10] The applicant was unable to positively answer most of the questions in relation to the control and finances of the companies and their success as it appears from the visa officer's note of the interview and that such performance could not establish the requirements of the definition of an investor in the Regulations.
[11] I also considered the applicant's second argument that a principle of fairness has been breached by the visa officer's refusal to accept after the hearing, more information addressing the visa officer's concerns about the financial aspects of the applicant's companies and his own managing involvement in them.
[12] First, it is established that there is no legal obligation to accept new information after the interview. Second, referring to the visa officer's CAIPS notes, letter and her affidavit, when the visa officer raised her concern to the applicant that the business deeds showed that the authority for both companies was vested in the applicant's older brother and she was not satisfied that he had met the definition of an investor, the applicant told the visa officer that he could change the business documents to show that he has the authority to manage and sign, and therefore adduce new evidence. This can only be of concern for any objective reader and surely did not help the applicant.
[13] The applicant had sufficient opportunities to try to satisfy the visa officer's, but was unable to answer specific questions relating to the visa officer's concerns regarding the notion of investor. He had the burden of proof to fully satisfy the Visa Officer of all the relevant facts and documentation to support the request but was not able to do so.
[14] For the above reasons I do not think that the visa officer erred in law, nor did she breach a principle of procedural fairness and that the exercise of her discretion was in accordance with custom and tradition in such circumstances.
[15] The applicant suggested the following three questions for certification:
1. L'agente des visas pouvait-elle refuser au requérant la possibilité de compléter son dossier quand il en a fait la demande sans contrevenir aux règles de justice naturelle? Could the Visa Officer deny the applicant the possibility to complete his record when he requested it, without violating principles of natural justice?
2. L'agente des visas devait-elle considérer séparément chacun des trois concepts qui forment partie de la définition de l'investisseur? Was the Visa Officer required to consider all three aspects which constitute part of the definition of investor?
3. L'agente a-t-elle lié sa discrétion (fettered her discretion) en traitant la connaissance des aspects financiers de son commerce comme une condition sine qua non pour l'émission d'un visa? Did the Visa Officer fetter her discretion in evaluating the applicant's knowledge about his company's financial aspects as a sine qua non condition for the issuance of a visa?
[16] The question suggested are not questions that meets the criteria to obtain certification. The following comments of Martineau J. in the recent decision Monteiro v. Canada (M.C.I.), [2002] F.C.J. No. 1720, can be applied in the present case:
In Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4, the Federal Court of Appeal specified at paragraph 4 that a certified question must be one that "transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application [...] but it must also be one that is determinative of the appeal". Furthermore, the Court in Huynh v. Canada, [1995] 1 F.C. 633 (F.C.T.D.) (confirmed by [1996] 2 F.C. 976 (F.C.A.)) indicated that "[a] certified question is not about the case at bar; it seeks to clarify an undecided legal point of general importance". In the case at bar, the proposed questions are not determinative of the appeal. Moreover, the present record and the particular circumstances of this case would make it difficult, through an appeal, to clarify any undecided legal point of general importance. Accordingly, no question of general importance will be certified.
[17] With regard to the first question, I cannot certify it because it is based on an unestablished factual allegation. Indeed, as aforementioned at paragraphs 11 and 12, the applicant did not simply request to "complete his file", but he suggested that he could "change" the documents to make sure he would satisfy the "investor" criteria, therefore this question would not be determinative of the case.
[18] As for the second question, the matter was already addressed before the Court of Appeal in Cheng, supra, as the applicant knows since he referred to this decision in support of his case.
[19] Regarding the third question, I find that the question is not of broad significance because the question of whether a Board member has improperly questioned or addressed a claimant must be determined on the particular facts and context of each case. This certified question is too specific and related to the facts in issue to be one that would clarify an undecided legal point of general importance.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review of the decision of the Visa Officer dated August 6, 2001, is dismissed and no question is certified.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4182-01
STYLE OF CAUSE : Hesham El-Sayed and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Montreal (Quebec)
DATE OF HEARING : February 27th, 2003
REASONS FOR ORDER : THE HONOURABLE JUSTICE SIMON NOËL
APPEARANCES :
Me Julius Grey FOR THE APPLICANT
Me Guy Lamb FOR THE RESPONDENT
SOLICITORS OF RECORD :
Grey, Casgrain
Le Cartier
3410 Peel Street
Suite 2101 FOR THE APPLICANT
Montreal (Quebec)
Morris Rosenberg FOR THE RESPONDENT
Department of Justice
Complexe Guy Favreau
200, boul. Rene Levesque West
Montreal (Quebec)