Date: 20020711
Docket: IMM-4254-00
Neutral citation: 2002 FCT 772
BETWEEN:
SIMA KAMELI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Sima Kameli (the "applicant"), a citizen of Iran, employed since 1979 with the British Bank of the Middle East in Dubai, rising from Secretary to the Area Manager to her current position of Deposit Manager, applied to become a permanent resident in Canada either as an independent applicant in the intended occupation of Business Development Officer (NOC 4163.0) or as a self-employed person intending to set up a consulting business. After interviewing her in Dubai, Luc Le François, (the "visa officer"), sent her a refusal letter dated June 23, 2000, which she challenges in this judicial review application.
[2] The visa officer was of the view she did not meet the minimum requirements of the NOC for a Business Development Officer because she did not have a bachelor's degree. He was also of the view she did not meet the definition of self-employed, that is a person with the ability to establish a business in Canada.
[3] It is common ground between the parties the applicant did not meet the employment requirements as a Business Development Officer (NOC 4163.0) since she did not have a bachelor's degree in Economics, Commerce, Business Administration or Public Administration. That is why her counsel, when forwarding her application, specifically requested the visa officer exercise the discretion provided for in subsection 11(3) of the Immigration Regulations, 1978, (the "Regulations") which would enable the issuance of an immigrant visa if the visa officer is of the opinion there are good reasons why the number of units of assessment awarded do not reflect the chances of a particular immigrant becoming successfully established in Canada.
[4] Counsel for the applicant raised two grounds of attack, one related to the exercise by the visa officer of his power under subsection 11(3) of the Regulations and the other with respect to the visa officer's assessment in the self-employed category.
[5] First, counsel argued the visa officer did not exercise the discretion provided for in subsection 11(3) of the Regulations, that is, he never turned his mind to whether he should exercise that discretion or not.
[6] In argument before me, counsel recognized the visa officer had turned his mind whether to exercise the discretion or not and did exercise it. He then argued the visa officer's reasons for refusing to exercise that discretion positively were not adequate.
[7] I cannot subscribe to counsel's argument because it would require me to read the visa officer's refusal letter microscopically without viewing it as a whole to determine its substance.
[8] In my view, when the refusal letter is examined as a whole, it is apparent why the visa officer was satisfied the number of units awarded to the applicant (62 units) reflected her chances of successfully establishing herself in Canada.
[9] These factors were:
(1) he was unsure whether she had performed the duties of a Business Development Officer; but he gave her the benefit of the doubt;
(2) she did not have the requisite university degree, not having completed high school;
(3) she only scored average on the personal suitability factor which is to measure the personal suitability of the applicant to become successfully established in Canada based on that person's adaptability, motivation, initiative, resourcefulness or other similar qualities; and
(4) she did not have arranged employment in Canada.
[10] The second argument advanced by counsel for the applicant relates to the self-employed category which is defined in subsection 2(1) of the Regulations as follows:
| "self-employed person" means an immigrant who intends and has the ability to establish or purchase a business in Canada that will create an employment opportunity for himself and will make a significant contribution to the economy or the cultural or artistic life of Canada;
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« travailleur autonome » s'entend d'un immigrant qui a l'intention et qui est en mesure d'établir ou d'acheter une entreprise au Canada, de façon à créer un emploi pour lui-même et à contribuer de manière significative à la vie économique, culturelle ou artistique du Canada.
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[11] Under subsection 8(4) of the Regulations, where a visa officer assesses an immigrant who intends to be a self-employed person in Canada, the visa officer, in addition to any other units of assessment awarded to that immigrant, awards 30 units of assessment to the immigrant if, in the opinion of the visa officer, the immigrant will be able to become successfully established in his occupation or business in Canada.
[12] Counsel for the applicant argued the reasons expressed by the visa officer were window dressing to conceal the visa officer's view the applicant lacked self-employer business experience, a view which is perverse because her experience is exactly that, i.e. business experience.
[13] In Yang v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 218, A.C.J. Jerome was dealing with the self-employed provisions of the Act, in the case before him, a self-employed musician. He said this provision required a consideration of three questions as follows:
First, is the applicant an accomplished musician . . . ? second, can he teach? third, can he be self-employed as a teacher? It is obvious that the applicant was successful in the first two and by inference at least, partially successful in the third. His only failure in respect to the third issue is the lack of actual experience as a self-employed teacher. By placing undue emphasis on the lack of experience as a self-employed teacher, the visa officer allowed that partial failure on the third issue to override success on the other two, an interpretation that made it almost impossible for this applicant to succeed. Accordingly, there has been a fundamental breach of the duty of fairness to this applicant which is sufficient to warrant the relief sought.
[14] Yang, supra, was followed by Justice McKeown in Leung v. Canada (Minister of Citizenship and Immigration), [2001] FCT 1293 and in Soo v. The Minister of Citizenship and Immigration, [2002] FCT 222.
[15] I am not persuaded by this argument. The material part of the visa officer's decision on his assessment of the applicant as a self-employed person reads:
Although direct experience in operating a business is not a prerequisite for qualifying for permanent residence as a self-employed person, in conjunction with other aspects of an application it can be one factor which assists us in determining the likelihood that you will meet the definition of self-employed. At your interview you stated that you have been working for the British Bank of the Middle East since 1979 where you have had different positions.
I also discussed your proposed business plans for Canada. You stated that you plan to establish yourself as a Business Development Consultant and that you have been advised by a cousin now residing in Canada that there is a market for this type of business. However, you have taken no concrete steps to determine the feasibility of establishing this type of business in Canada, or the costs involved. Neither have you investigated whether there are any business or professional registration requirements to be met prior to establishing the business and marketing the services you will offer. Even if you visited Canada, the preparation which might normally have been expected is lacking from your application in that you knew nothing of Canadian market conditions and you conducted no investigations. You also confirmed that you have never been doing consultancy of your own in the past. I am also of the opinion that you failed to demonstrate that your proposed business will be of significant contribution to the Canadian economy or to the cultural or artistic life of Canada.
After a review of all the information provided by you on your application and at your interview, I have determined that your experience is not commensurate with that required to set up a business in Canada. This, combined with your lack of knowledge of the Canadian business climate in general, and your market sector in particular will have a negative impact on your ability to establish or purchase a business in Canada. As a result, you do not meet the definition of self-employed. [emphasis mine]
[16] The view I take of the visa officer's decision is he was not satisfied the applicant, either in the documentation she provided in her application or during the interview, demonstrated to him she had the ability or capacity to establish a business which would successfully operate in Canada.
[17] One of the basic principles of the Immigration Act and Regulations is that persons seeking to become immigrants to Canada must put their best foot forward. They have the onus (burden of proof) of demonstrating to a visa officer they qualify for admission and as a result have an obligation of supporting their application for admission with such documentation as will make out a convincing case.
[18] Here, the applicant had to convince the visa officer she had the ability to establish her own business in Canada and that business will provide an important and needed service to Canada.
[19] How an applicant advances his/her case is largely up to the applicant and this will necessarily vary with the type of admission sought. In the self-employed category, the applicant must show, through documentation and answers during the interview, she had a concrete plan of action, an understanding of the market and economic conditions in Canada. A formal business plan is not necessary but often will be helpful in establishing an applicant has the necessary capacity to establish a business.
[20] The sense I have of the visa officer's decision is that he was not satisfied by what the applicant provided him before the interview or told him during the interview as to her ability to establish a business. Her action plan was too nebulous. There was not sufficient concrete details surrounding her plan of action in terms of the market and the economics surrounding her proposal.
[21] Based on my examination of the tribunal record, the applicant's affidavit in support of this judicial review application it was reasonably open for the visa officer to take this view.
[22] For all of these reasons, this judicial review application is dismissed. No certified question arises.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JULY 11, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4254-00
STYLE OF CAUSE: Sima Kameli and the Minister of Citizenship
and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 20, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX
APPEARANCES:
Mr. Cecil L. Rotenberg FOR APPLICANT
Mr. Stephen Jarvis FOR RESPONDENT
SOLICITORS OF RECORD:
Cecil L. Rotenberg FOR APPLICANT
Toronto, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada