Date: 20030424
Docket: IMM-5071-01
Citation: 2003 FCT 504
Ottawa, Ontario, this 24th day of April, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
MEHDI NAGHASHIAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Mehdi Naghashian (the "Applicant"), a citizen of Iran, wishes to come to Canada. In February 1999, he submitted an application for permanent residence in the Entrepreneur category, with the intention of exporting Canadian-made heating and cooling products to Iran. The Applicant attended a personal interview at the Canadian Embassy in Abu Dhabi, United Arab Emirates on April 26, 2001. At the end of the interview, the Applicant was advised that his application had been refused. That decision was communicated in a letter dated May 19, 2001 from Dan Dragovich (the "visa officer") wherein the visa officer advised the Applicant that his application for permanent residence in Canada was refused since he was not an entrepreneur as defined in subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172 as amended ("Immigration Regulations"). The refusal letter was finally received by the Applicant on October 2, 2001. The Applicant seeks judicial review of that decision.
[2] In the letter decision, the visa officer states that his decision was based on the Applicant's lack of managerial experience and lack of knowledge of Canada. In particular, the visa officer noted inconsistencies regarding the Applicant's ability to manage a new business venture, his experience and assets and the availability and origin of his stated assets. In addition, the Applicant could not provide the visa officer with any background information, either in general terms of socio-economic conditions of Canada or in specific terms of the Canadian based business opportunities, including those relevant to the establishment of a business in Canada.
Issue
[3] The Applicant raises the following issue:
1. Did the visa officer deny the Applicant a fair and full assessment of his application?
Analysis
[4] For the reasons that follow, I am of the view that this application should not succeed.
Preliminary Issue: Standard of Review
[5] 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. If the statutory discretion has been exercised in good faith and in accordance with the principles of natural justice where required, and if reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, then this Court should not intervene (To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (C.A.) (QL); Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2).
Issue #1: Did the visa officer deny the Applicant a fair and full assessment of his application?
[6] In order to qualify as an entrepreneur, both parts of the definition set out in subsection 2(1) of the Immigration Regulations must be satisfied (Yeung v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 792 (T.D.) (QL)). That provision is as follows:
| "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; |
|
|
|
|
Intention and Ability to Establish, Purchase or Make a Substantial Investment in a Business in Canada
[7] The Applicant submits that the visa officer failed to consider whether he could purchase or make a substantial investment in a business (Mak v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 375 (T.D.) (QL); So v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 6 (T.D.) (QL)). In the Respondent's submission, the visa officer did consider this question, but was not satisfied that the Applicant had the assets that he claimed to have and thus concluded that he could not do so.
[8] The words "establish, purchase or make a substantial investment" in the first part of the entrepreneur definition are disjunctive and require the visa officer to assess each aspect separately (Mak, supra; So, supra). However, the visa officer's failure to focus on the Applicant's ability to purchase or make a substantial investment in a business is only a reviewable error if there is a factual basis which clearly establishes such an intention (Majeed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 742 (T.D.) (QL); Dhamee v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 109 (T.D.) (QL)). The Applicant's presentation in this case focussed on the establishment of a new business in Canada, and not the purchase of or a substantial investment in an already existing business. As a result, in my view, the visa officer was not required to assess whether the Applicant had the intention and ability to purchase or make a substantial investment in a business.
[9] In any case, the CAIPS notes indicate that the visa officer did consider the Applicant's ability to establish, purchase or make a substantial investment in a business. The following excerpt from the CAIPS notes, at page 6 of the Certified Tribunal Record, indicates the visa officer's concerns regarding the Applicant's assets:
I ASKED THE APPLICANT IF HE COULD PROVIDE ME WITH DOCUMENTATION THAT WOULD PROVIDE SUFFICIENT EXPLANATION FOR ASSET ACCUMULATION. APPLICANT SAID HE CAN NOT BUT IT WAS FROM HIS EARLIER WORK. I ASKED THE APPLICANT IF HE WAS EARNING MORE MONEY 10 YEARS AGO THAN NOW, HE SAID YES, BUT HE CAN NOT PROVIDE INFORMATION. I AM NOT SATISFIED WITH HIS EXPLANATION. EITHER APPLICANT DOES NOT HAVE THE STATED ASSETS OR THEY DID NOT ORIGINATE THROUGH HIS LEGITIMATE BUSINESS AND COMPANY.
[10] A review of the CAIPS notes in their entirety reveals that the visa officer repeatedly requested further explanation, information and documentation from the Applicant regarding his assets, but the Applicant was unable to provide that information. As a result, it was open to the visa officer to doubt whether the Applicant actually had the assets that he claimed to have. Although the visa officer did not explicitly state whether the Applicant had the ability to purchase or make a substantial investment in a business, I am not of the view that this is a reviewable error. As indicated by the above excerpt, the Applicant was unable to establish that he owned, and therefore was able to dispose of, all of his claimed assets. In addition, the definition of entrepreneur in subsection 2(1) of the Immigration Regulations contains two parts, both of which must be satisfied by the Applicant (Yeung, supra). The Applicant's failure to satisfy the second part of the definition precludes him from being granted an immigrant visa as an entrepreneur even if he did meet the first part of the definition.
Intention and Ability to Provide Active and On-going Participation in the Management of the Business
(I) Managerial Experience
[11] In the Applicant's submission, it did not make any sense for the visa officer to conclude that he lacked managerial experience given that he owned and operated a business for over thirty years. The Applicant also submits that the visa officer failed to appreciate the earnings and profits figures given by the Applicant. In particular, the visa officer failed to appreciate that the $4000 noted by the Applicant as a gross monthly salary was his monthly salary draw and not his share of the profits. As a result, this amount did not have to dovetail with the annual profit of $215,000.
[12] In my view, it was open to the visa officer to conclude that the Applicant had not demonstrated the requisite ability to run a profitable business based on the following:
1. At the interview, the Applicant was unable to provide the visa officer with any details regarding his position at the factory, other than his claim that he controlled the production;
2. The visa officer properly used the Applicant's failure to satisfactorily explain his assets and the profits from his factory to support his conclusion that the Applicant did not have the ability to successfully manage an ongoing business venture in Canada. The CAIPS notes do not support the Applicant's submission that the visa officer misunderstood the earnings and profits figures provided by the Applicant.
[13] Further, as evidenced by the CAIPS notes, the Applicant was unable to explain the discrepancy between the various figures given. His inability to do so is a relevant factor in determining whether he could provide active and on-going participation in the management of his proposed business in Canada. In addition, the profitability of the Applicant's present business is a valid factor in determining whether the Applicant has the ability to establish a business and actively participate in the management of that business (Yeung, supra; Lobzov v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1065 (T.D.) (QL)); Hui v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 60 (T.D.) (QL)). As a result, the visa officer was entitled to rely on these factors in his determination that the Applicant did not have the ability to provide active and on-going participation in the management of a business.
(II) Training as a Technician
[14] The Applicant submits that it was totally unfair and unreasonable for the visa officer to reject his explanation that his training as a technician over forty years ago was by way of on-the-job experience. It was also unfair and unreasonable of the visa officer to require corroborating evidence.
[15] In my view, it was open to the visa officer to reject the Applicant's explanation on this issue. According to the CAIPS notes, the Applicant claims that he obtained his job as a technician based on his years of experience. When confronted with the fact that this job was his first job, the Applicant was unable to explain what years of experience he was referring to.
(III) Intention to Establish a Business in Canada
[16] The Applicant submits that the visa officer's statement that the Applicant was not sure what exactly he intended to do in Canada makes no sense whatsoever. The Applicant would not have made an entrepreneurial application or waited over two years for his interview if he had no genuine intention of doing business in Canada. In addition, the Applicant submits that the visa officer had a preconceived belief that the Applicant did not have any intention of doing business in Canada due to his age.
[17] I do not agree. The onus was on the Applicant to establish that he met the definition of an entrepreneur and a review of the CAIPS notes indicate that he failed to do so. It is open to this Court to prefer the visa officer's version of what transpired in the interview, as supported by the CAIPS notes (Paracha v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1786 (T.D.) (QL)).
[18] In addition, the evidence does not support the Applicant's submission that the visa officer had a preconceived notion regarding his intention to establish a business in Canada based on his age. The CAIPS notes indicate that the visa officer considered the Applicant's age as only one relevant factor. The visa officer also considered the Applicant's inability to speak English, lack of knowledge of current business and economic market conditions in Canada, lack of expertise in administrative and management fields, lack of formal training or education, and the failure of the business profits from the Iranian factory to explain the Applicant's assets.
(IV) Opportunity to Address Visa Officer's Concerns
[19] Finally, the Applicant submits that he was not given a fair and meaningful opportunity to address the visa officer's concerns. The visa officer should have allowed his counsel, as requested, to assist the Applicant in addressing these concerns.
[20] I do not agree with this submission. The visa officer made a decision on the Applicant's application after the interview and immediately informed the Applicant of that decision. Counsel for the Applicant did not offer to provide additional information until August 9, 2001, more than three months after the interview took place. If the Applicant had further information to provide that he felt was necessary to support his application, he could have informed the visa officer of this either at the interview or shortly thereafter. Moreover, the visa officer repeatedly requested explanations and further information from the Applicant during the interview; each time, the Applicant was unable to provide that information. As a result, the Applicant was given a fair and meaningful opportunity to address the visa officer's concerns and his failure to take advantage of that opportunity does not constitute an error on the part of the visa officer.
Question for Certification
[21] Neither party proposed a question for certification.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. There is no question for certification.
"Judith A. Snider"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5071-01
STYLE OF CAUSE: MEHDI NAGHASHIAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, APRIL 16, 2003
REASONS FOR ORDER BY: SNIDER J.
DATED: THURSDAY, APRIL 24, 2003
APPEARANCES BY: Mr. Mark Rosenblatt
For the Applicant
Ms Alexis Singer
For the Respondent
SOLICITORS OF RECORD: Rosenblatt Associates
Barristers & Solicitors
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20030416
Docket: IMM-5071-01
BETWEEN:
MEHDI NAGHASHIAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER