Date: 20030314
Docket: IMM-1543-02
Neutral citation: 2003 FCT 312
CALGARY, Alberta, Friday, the 14th day of March, 2003.
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
JAGDISH SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Jagdish Singh (the "Applicant) is citizen of India who has resided in Hong Kong since 1985. On September 29, 1998, he submitted an application for permanent residence in Canada in the Entrepreneur category. He intended to open a liquor store in Calgary, Alberta. After a personal interview on March 4, 2002, visa officer Nicole Gareau (the "visa officer"), by letter decision dated March 5, 2002, refused the application. The visa officer determined that the Applicant was not an entrepreneur as defined in the Immigration Regulations, 1978, SOR/78-172 as amended ("Immigration Regulations"). The Applicant now applies for judicial review of that decision.
[2] In her letter of refusal of March 5, 2002, the visa officer stated that the reasons for the refusal were explained to him at the interview and that he was given an opportunity to respond. The relevant portion of the Computer Assisted Immigration Processing System ("CAIPS") Notes is as follows:
Based on the information provided to me by the applicant, I am not satisfied that he has the ability to establish, purchase [or] make a substantial investment in a business or commercial venture that will make a significant contribution to the economy and whereby employment opportunities will be created for Canadians, an[d] I am not satisfied that he has the ability to provide active and ongoing management. He appears to have been solely reliant on his lawyer and brother for the entire business plan, from choosing the sector in which to establish the business, to doing the cost projections, and he has indicated that he will rely on them upon his arrival as well. Although it is a positive thing that he would have someone to help him, he has not given me any indication that he has put much independent thought into the plan. He was not able to articulate what skills he has that are transferable to setting up a business. He has no knowledge of the liquor sales industry, and when asked about choosing products, all he could reply is buying products people like. He submitted his application in 1999, and has made no efforts since this time in acquiring knowledge in this field. The aggregate sum of all these concerns have resulted in the failure of the PI to satisfy me that he meets the definition of entrepreneur.
Issues
[3] Although not explicitly stated by the Applicant, the issues in this application can be stated as follows:
Did the visa officer base her decision in a perverse or capricious manner or without regard to the material before her, by
a. Ignoring evidence before her; or
b. Taking irrelevant considerations into account in reaching her decision.
Relevant Statutory Provisions and Regulations
[4] Entrepreneur is defined at subsection 2(1) of the Immigration Regulations:
"entrepreneur" means 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;
« entrepreneur » désigne un immigrant
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;
Analysis
[5] For the reasons that follow, I am of the view that this application should not succeed.
Standard of Review
[6] An application to be admitted to Canada as an immigrant involves a discretionary decision on the part of the visa officer, who is required to make that decision on the basis of specified statutory criteria. For this Court to intervene, there must be "either an error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this essentially administrative assessment" (Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 at 83-8 (T.D.). This Court should not intervene where the statutory discretion has been exercised in good faith and, where required, "in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose" (Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, at 7 -8).
Ignored Evidence
[7] The Applicant submits that his high net worth, six years of supervisory experience in the banking industry, nineteen years of experience as a bank clerk, fluency in several languages, business proposal, and research done for the prospective business of a retail liquor store in Canada determinatively establish that he has an intention and an ability to set up a business in Canada and the visa officer erred by ignoring this evidence and concluding otherwise (Lam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 396 (T.D.) (QL)).
[8] In my view, the CAIPS notes clearly indicate that the visa officer considered all of this evidence.
[9] Although the Applicant's net worth is a relevant consideration for paragraph (a) of the entrepreneur definition, in order to qualify as an entrepreneur, he must still establish that he had the ability to provide active and on-going participation in the management of the business (Immigration Regulations, s. 2(1); Heer v. Canada (Canada (Minister of Citizenship and Immigration), 2001 FCT 1357 [2001] F.C.J. No. 1853 (QL)).
[10] The visa officer, in assessing whether the Applicant met paragraph 2(1)(b) of the definition of "entrepreneur" was required to consider and weigh a myriad of factors, (Postolati v. Canada (Minister of Citizenship and Immigration), 2003 FCT 251). The visa officer's conclusion indicates that her primary concern was the Applicant's inability to provide active and on-going management of the business. Since he failed to meet the requirements of paragraph (b) of the definition of entrepreneur, his ability to meet the requirements of paragraph (a) could not change the visa officer's ultimate conclusion.
[11] The visa officer questioned the Applicant extensively on his business plan at the interview, but the Applicant was unable to provide more detailed information on his proposed business. In her conclusion, the visa officer noted that the Applicant relied solely on his lawyer and his brother for the entire business plan and that he planned to rely on them upon his arrival in Canada. The Applicant had not given much independent thought into this plan and he had no knowledge of the liquor sales industry. In my view, the visa officer did not ignore the Applicant's business proposal and minimal research on the proposed business. Rather, she clearly considered that evidence in her conclusion and decided to place little weight on both the plan and the research.
[12] There is no indication that the visa officer failed to consider the Applicant's banking experience. The CAIPS notes indicate that the visa officer gave the Applicant a number of opportunities to explain the relevance and transferability of his banking experience to his proposed liquor store business, but that the Applicant failed to demonstrate the relevance of transferability of that experience. As a result, the visa officer was entitled to give that experience little weight in her determination of whether the Applicant met the definition of an entrepreneur.
Irrelevant Considerations
[13] The Applicant further argues that the visa officer refused his application based on irrelevant considerations including his lack of knowledge of the liquor industry and his reliance on his brother and his lawyer in setting up this business. The Applicant submits that he did have knowledge about the basic concept of a liquor store and his supervisory experience with the Bank supports the conclusion that he has the ability to establish a business in Canada.
[14] In my view, the Applicant's lack of knowledge of the liquor business and his reliance on others in setting up his business were both relevant considerations in this case and the visa officer properly considered them in reaching her conclusion that the Applicant did not meet the definition of an entrepreneur.
[15] This case can be distinguished from Kabir v. Canada (Minister of Citizenship and Immigration, 2001 FCT 27, [2001] F.C.J. No. 171 (QL) where the visa officer erred by requiring the Applicant to have knowledge of Canadian building codes and of Canada's tax system. In the present case, the visa officer did not require the Applicant to have specific knowledge of the liquor sales industry; rather, she focussed on the Applicant's general knowledge of that industry, such as the various types and brands of liquor. This was a relevant consideration and the visa officer did not err by taking it into consideration. Although the questioning by the visa officer about the requirements for a liquor licence in Alberta was similar in nature to the demands of the visa officer in Kabir, supra, the visa officer's conclusion in this case was clearly reasonable on the basis of the numerous significant gaps in the Applicant's general knowledge.
[16] It is well-settled that an entrepreneur is not required to launch a new business venture by himself (So v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 6 (T.D.)(QL)) However, the Applicant still must establish that he has the ability to participate in the management of the business. In this case, the visa officer did not require the Applicant to demonstrate that he would establish the liquor store on his own; rather, she expressed a concern at the amount of reliance that the Applicant appeared to be placing on his brother and his lawyer. The evidence before the visa officer indicated that the Applicant gave very little thought to the proposed liquor store and that he relied heavily on his brother and lawyer for information and assistance. In So, supra the applicant clearly indicated his intention to establish a business with his brother. In this case, the Applicant has clearly stated his intention to set up a liquor store or purchase an existing business on his own. Although he indicated that he would rely on his brother and his lawyer for information and legal advice, he never mentioned that he intended to establish a business with them. As a result, this case can be distinguished from So, supra. Moreover, as addressed above, the Applicant did not establish that he had the ability to participate in the management of the business and therefore could not meet the definition of entrepreneur.
[17] In summary, I note that the Applicant's concerns relate primarily to how the visa officer weighed the evidence before her. Given that she did not ignore evidence or take into account irrelevant considerations, it would not be appropriate for me to reweigh that evidence. In the circumstances, the decision of the visa officer was reasonably open to her and should stand.
[18] The Applicant did not propose a question for certification. The Respondent wished me to consider a question only if I granted the specific relief sought by the Applicant that this Court order that a visa be issued to the Applicant. Given my dismissal of this application, such a question does not need to be considered.
ORDER
THIS COURT ORDERS that:
This application for judicial review is dismissed.
There is no question for certification.
"Judith A. Snider"
JUDGE
Calgary, Alberta
March 14, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1543-02
STYLE OF CAUSE: JAGDISH SINGH v. MCI
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: March 3, 2003
REASONS FOR ORDER AND ORDER: Snider, J.
APPEARANCES:
Mr. Satnam S. Aujla FOR APPLICANT
Mr. W. Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
Yanko Merchant Law Group
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT