Date: 20030327
Docket: IMM-420-01
Neutral citation: 2003 FCT 361
Ottawa, Ontario, this 27th day of March, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A . O'KEEFE
BETWEEN:
ALEXANDER SHABASHKEVICH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of the decision of Mary Coulter, second secretary at the Canadian Embassy, Visa Section in Moscow, Russia, dated December 21, 2000, refusing the applicant's application for permanent residence as an "entrepreneur".
[2] The applicant, a citizen of Russia, submitted an application for permanent residence in Canada under the business entrepreneur category on December 10, 1997. In his affidavit he indicated that his net worth was over CAD$1,000,000.
[3] On February 10, 1999, the applicant attended a selection interview at the Canadian Embassy in Belgrade, Yugoslavia. The interview was conducted by visa officer Sylvie Doucet. There is disagreement between the parties as to the outcome of this interview. The applicant alleges that visa officer Doucet assured the applicant, and subsequently his counsel, that the application would be approved. The respondent denies this.
[4] Later in February 1999, visa officer Doucet was temporarily evacuated to Budapest, Hungary, due to the political situation in Yugoslavia. She returned to Belgrade for a short period of time in 1999 and was finally evacuated from Belgrade on March 20, 1999. She returned to Canada on March 30, 1999. She had no further dealings with the applicant's file.
[5] Both visa officer Doucet and visa officer Coulter state in their affidavits that visa officer Doucet did not make a decision on the applicant's file at the end of the interview.
[6] On July 21, 1999, the applicant's counsel sent a fax to the Canadian Embassy in Belgrade inquiring about the status of the applicant's file. That fax read in part as follows:
. . . Apparently, a selection decision is still pending in both bases. Would you please clarify upon what is decision pending and when can such a decision be expected. . . .
[7] The Canadian Embassy in Belgrade was closed in March 1999 and the applicant's file was subsequently transferred to the Canadian Embassy in Vienna, Austria. In August 1999, the applicant's representative requested that the file be transferred to the Canadian Embassy in Bonn, Germany. This was done in September 1999. The file was received by the Canadian Embassy in Moscow on November 18, 1999, pursuant to section 10.1 of the Immigration Act, R.S.C. 1985, c. I-2.
[8] On July 26, 2000 the applicant was invited to attend an interview at the Canadian Embassy in Moscow scheduled for November 14, 2000. The visa officer assigned to the file was visa officer Coulter.
[9] The interview took place on November 14, 2000. The applicant alleges that he was under the impression this was to be a security interview, requiring no further discussion of his business plans. The respondent submits that this was a second selection interview, and no decision on the application had been made.
[10] The applicant's application was denied by letter dated December 21, 2000. This is the judicial review of this denial.
[11] Issues
1. Is there a difference between the standard of review in the definition of entrepreneur and the review that is required to be taken prior to the applicant's condition being removed?
2. Should the applicant be assessed as of the lock-in-date?
3. Did the visa officer ignore relevant evidence, misconstrue the evidence before her and make findings that were patently unreasonable so as to constitute a reviewable error?
4. Did the respondent deny the applicant procedural fairness by failing to advise the applicant that the second interview was a selection interview and by failing to communicate the first visa officer's concerns and the program manager's comments to the applicant?
5. Did the visa officer fail to consider the exercise of positive discretion pursuant to subsection 11.(3) of the Immigration Regulations, 1978, SOR/78-172?
Relevant Statutory Provisions and Regulations
[12] An entrepreneur is defined in subsection 2.(1) of the Immigration Regulations, supra, 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; |
Analysis and Decision
[13] Issue 1
Is there a difference between the standard of review in the definition of entrepreneur and the review that is required to be taken prior to the applicant's condition being removed?
Teitelbaum J. in Liu v. Canada (Minister of Citizenship and Immigration), 2001 F.C.T. 251, F.C.J. No. 1125, (QL) (T.D.), wrote at paragraphs 19 and 20:
The appropriate standard of review for this type of decision - a discretionary one by a visa officer - is the same as that enunciated by McIntyre J. in the Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7 - 8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. 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, the courts should not interfere.
In Wang v. Canada (M.C.I.), [2001] F.C.J. No. 95 (IMM-2813-00, January 25, 2001), Rouleau J., referring to the above cited passage as well as to the Supreme Court of Canada's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, held that the appropriate standard of review should be reasonableness simpliciter [emphasis added].
Accordingly, reasonableness simpliciter is the appropriate standard to review the visa officer's decision in this case. The Court will not set aside a discretionary decision of an immigration officer if that decision is reasonable. The applicant also submitted that there should be a different standard of review for visa officer decisions relating to entrepreneurs.
[14] I have reviewed the applicant's submissions contained in paragraphs 1 to 10 of his memorandum of fact and law where he submits that an entrepreneur's ability to establish a business is assessed at the time the visa is issued, again when the applicant appears at the port of entry, and later when the condition is removed. In paragraph 8 of his memorandum, the applicant states:
It is respectfully submitted that the proper approach would have been to give the applicant his immigrant visa and to allow him to demonstrate his ability to establish a business and if he failed to do so, he would be subject to the condition imposed on his landing and would be asked to leave Canada.
[15] In Chiu v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1460 (QL) (T.D.), Simpson J. stated at paragraph 8:
The applicant also submitted that the fact that other immigration officers follow up the implementation of an applicant's business plans relieves the initial reviewing officer from the need to be satisfied that a viable venture is planned. I do not accept this submission because it is for the interviewing officer to establish that an applicant meets the requirements of the Definition.
I adopt with the statement of Simpson J. As a result, I conclude that the visa officer was correct in the approach she took in assessing the applicant in this regard.
[16] The applicant also submits that the visa officer erred by stating in her refusal letter that she was not satisfied that the applicant had the "ability to successfully establish, purchase or make a substantial investment in a business or commercial venture in Canada". The applicant submits that the visa officer used the wrong test as the word "successfully" does not appear in the definition of entrepreneur. MacKay J. of this Court in Wang v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 677 (QL) (T.D.) stated at paragraph 14:
. . . Reservations about the applicant's ability to establish and operate a successful business in Canada were not unreasonable or without some support in the evidence. Further the record discloses that the applicant had not investigated in any careful way the business environment in Canada, particularly with regard to the specific business he proposed to operate. His English was less than fluent. It was not unreasonable to conclude this could present an impediment, not necessarily an insurmountable one, to the establishment of a business in Canada.
I would adopt the statement of MacKay J. I am of the view that the visa officer did not apply the wrong test by the use of the word "successfully". No error was made by the visa officer in this respect.
[17] Issue 2
Should the applicant be assessed as of the lock-in-date?
The applicant stated that the visa officer's assessment should not have been conducted based on facts as they existed at the time of the interview (November 14, 2000), but on the facts as they existed at the time the application was received (December 10, 1997).
[18] In Lau v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 81 (QL) (T.D.) Tremblay-Lamer J. stated at paragraphs 9 to 11:
The Applicant submits the cases of Wong v. Minister of Employment and Immigration (1985), 64 N.R. 309 (F.C.A.) and Yeung v. Canada (Minister of Employment and Immigration) (1992), 17 Imm. L.R. (2d) 191 (F.C.T.D.) for the proposition that the assessment should be conducted based on the facts as they existed at the time the application was received by Immigration officials, and not based on the facts as they were at the time of the reassessment. In my opinion, these two cases state that the "lock-in" date for the applicable law and regulations shall be fixed at the time the application is received. However, that is not this case. The present application deals with an exercise of discretion.
In my opinion, when a visa officer exercises his or her discretion, he or she must do so on the basis of the facts as they stand at the time of the exercise of that discretion. This is especially the case where there has been a change in circumstances. If, for example, the brothers were no longer alive or had sold their businesses and moved to another country, it would be illogical to expect a visa officer to form an opinion and simply ignore these facts. In arriving at this conclusion, I am guided by the words of Clive Lewis, in Judicial Remedies in Public Law (London: Sweet & Maxwell, 1992) at 151:
The decision-maker is required to consider all the relevant factors that exist at the time that he takes the second decision, and is not confined to looking at the material that existed at the time of the original invalid decision.
I note that such an approach could also work to an applicant's advantage, where he or she has managed to upgrade skills or secure a viable job offer. Unfortunately, for the present Applicant, the circumstances have worked against him.
I have come to the same conclusion as Tremblay-Lamer J. and consequently, no reviewable error was made in this respect.
[19] Issue 3
Did the visa officer ignore relevant evidence, misconstrue the evidence before her and make findings that were patently unreasonable so as to constitute a reviewable error?
The applicant submits that the officer came to a patently unreasonable decision in the face of the evidence of the applicant's business abilities and resources, and that the officer placed undue weight upon his limited knowledge of English and poor recollection of streets and newspapers in Toronto, where he intends to set up his business.
[20] The respondent submits that the applicant is asking the Court to re-weigh evidence that was before the officer and substitute a different factual finding. It is submitted that such an action is inappropriate as the officer conducted a thorough evaluation of the applicant's qualifications and proposed business and offered the applicant adequate opportunity to answer her concerns.
[21] I have reviewed the CAIPS notes of the visa officer, which are extensive and detailed, and I cannot find that the visa officer made findings that were patently unreasonable. By way of example, she addressed the applicant's visits to Toronto and Montreal and she asked the applicant if he had attended a provincial business seminar when he was in Toronto. She also asked him to name his top three competitors and he was unable to name any. She also noted that he met with the Jewish Business Committee. The CAIPS notes contained in the respondent's record state at page 26:
. . .
ASKED PI WHERE HE PLANNED TO ESTABLISH BUSINESS IN CANADA. PI RESPONDED TORONTO. ASKED WHERE IN TORONTO. STATED HE HAD NOT DECIDED EXACTLY. STATED MOST PROBABLY IN THE BUSINESS PART. THEN STATED HE DID NOT KNOW AND HAD NO DETAILS.
And at page 27:
. . .
ADVISED PI OF MY CONCERNS RE: PLANS FOR CANADA, SPECIFICALLY THE LIMITED RESEARCH HE HAD UNDERTAKEN IN SUPPORT OF HIS PLANNED SERVICE IN CANADA.
After a review of the CAIPS notes, I am of the opinion that the visa officer considered many other factors and did not put undue weight on the applicant's limited English language ability or that he could not specify where he planned to locate his business in Toronto. The visa officer did not ignore relevant evidence, nor misconstrue the evidence before her. The weighing of the evidence is for the visa officer and unless the visa officer made an unreasonable finding or ignored evidence, the Court will not substitute its opinion for that of the visa officer. The visa officer's findings with respect to the evidence are reasonable and are not subject to review on this ground.
[22] Issue 4
Did the respondent deny the applicant procedural fairness by failing to advise the applicant that the second interview was a selection interview and by failing to communicate the first visa officer's concerns and the program manager's comments to the applicant?
The applicant was granted a de novo interview before visa officer Coulter. The visa officer stated in paragraph 6 of her affidavit:
. . . At the outset on the interview, I reviewed the regulatory definition of "entrepreneur" with Mr. Shabashkevich. I explained to Mr. Shabashkevich that the purpose of the interview was to determine whether or not he met that definition. Mr. Shabashkevich indicated to me that he understood both the definition and the purpose of the interview.
Based on this evidence of the visa officer, I am satisfied that there was no denial of procedural fairness. The applicant could have asked for more time if he needed time to prepare for the interview or to make further submissions.
[23] The applicant submits that the notes of visa officer Doucet and the program manager's comments should have been disclosed to the applicant as they were third party reports. It is not necessary to determine the nature of these notes as visa officer Coulter's evidence on cross-examination was that she did not rely on these notes or conclusions in reaching her decision. Visa officer Coulter stated on her cross-examination at pages 64 to 66 of the applicant's application record:
Q. After you reviewed the case, did you have the same doubts as Ms. Doucet did, as reflected in her CAIPS notes?
A. When you say "review", are you referring to after the interview, or after the initial - - -
Q. No, I'm talking about the time you reviewed the file, you would have read Ms. Doucet's CAIPS notes, would you not?
A. Correct, but only for the purpose of any admissibility concerns. When someone is brought to interview for a selection interview, especially where a case has been voluntarily transferred and no selection decision has been made, I start at the very beginning.
Q. I see. Do you think it would have been fair - I'm sorry, do you think that you ought to have been sent to the applicant Ms. Doucet's doubts, and ask him to bring some material along if he wanted to rebut them?
A. Those were not my concerns. I required that the applicant - or it was required of the applicant to bring with him the standard business documents that would be required to perform a de novo interview.
I did not feel that it would be appropriate to bring Ms. Doucet's conclusions into this assessment, and risk any chance of my own decision being fettered.
. . .
Q. All right. Anyway, you did not convey those doubts, and tell me, given the length of time that this application took to process, would you not think it fair to give the applicant an opportunity to deal with those doubts?
A. As I mentioned, they were not my doubts. We asked that the applicant provide to us updated business documents and so forth, so that I can make a current and correct conclusion.
The fact that it did take such a long time, as we discussed previously, was in large part due to the fact that he decided to make a voluntary transfer without a selection decision having been made.
There was no prejudice to the applicant and no breach of the duty of procedural fairness.
[24] Issue 5
Did the visa officer fail to consider the exercise of positive discretion pursuant to subsection 11.(3) of the Immigration Regulations, 1978, SOR/78-172?
The applicant submitted that the visa officer erred in failing to exercise positive discretion pursuant to subsection 11.(3) of the Immigration Regulations, 1978, supra. There is no evidence in the file to indicate that the applicant requested the visa officer to exercise positive discretion. It is not an error for the visa officer not to exercise positive discretion under subsection 11.(3) if the exercise of positive discretion has not been requested (see Lam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1239 (QL) (T.D.)).
[25] The application for judicial review is dismissed.
[26] The applicant has proposed the following question for certification:
Where it is clear that the applicant is mistaken about the nature of the second interview which has been convoked by the visa officer and the visa officer is aware of the same because the applicant has sent unanswered letters asking for a clarification, is it procedural unfairness or a denial of natural justice to let the applicant come to the interview un-notified of the real purpose of the said interview?
[27] I am not satisfied that this is a proper question for certification. In Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637 (QL) (C.A.), Décary J.A. for the Court stated at paragraph 4:
In order to be certified pursuant to subsection 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of the concept of "importance" by Catzman, J., in Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57 O.R. (2d) 569 (Ont. H.C.), but it must also be one that is determinative of the appeal. The certification process contemplated by section 83 of the Immigration Act is neither to be equated with the reference process established by section 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case.
[28] In Chen v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 350 (T.D.), Strayer J. (as he then was) stated at page 177:
. . . I believe that fairness required in these circumstances that the visa officer, at the time of the interview on December 29, 1988, tell the visa applicant at the outset the real purpose of the interview . . .
[29] This is what the visa officer did in the present case (see paragraph 6 of the affidavit of the visa officer contained in paragraph 22 of this decision). This question does not contemplate an issue of broad significance or general application. Accordingly, I am not prepared to certify the question as a serious question of general importance.
[30] The application for judicial review is dismissed.
ORDER
[31] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
March 27, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-420-01
STYLE OF CAUSE: ALEXANDER SHABASHKEVICH
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, November 27, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Thursday, March 27, 2003
APPEARANCES:
Cecil Rotenberg, Q.C.
FOR APPLICANT
Stephen Gold
FOR RESPONDENT
SOLICITORS OF RECORD:
Cecil L. Rotenberg, Q.C.
Suite 808
255 Duncan Mill Road
Toronto, Ontario
M3B 3H9
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT