Date: 19990126
Docket: IMM-1003-98
BETWEEN:
MUYASSAR AWWAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J.
[1] This is an application for judicial review, pursuant to section 18.1 of the Federal Court Act, of the decision of a visa officer dated January 11, 1998, which rejected the applicant's application for permanent residence in Canada. The applicant seeks an order of certiorari quashing the decision of the visa officer and an order of mandamus directing the respondent Minister to process the applicant's application for permanent residence under the self-employed category and pursuant to section 11(3) of the Immigration Regulations as it existed at the time the application for permanent residence to Canada was filed, as well as a declaration that the visa officer's decision was erroneous in rejecting the applicant's Humanitarian & Compassionate (H & C) application.
[2] At the commencement of the hearing, counsel for the applicant informed the Court he was not pursuing the issue under section 11(3) of the Regulations.
[3] The applicant, a citizen of Jordan, filed an application for permanent residence to Canada on April 22, 1997 under section 114(2) of the Immigration Act requesting humanitarian and compassionate considerations and section 11(3) of the Immigration Regulations requesting the exercise of positive discretion, as well as under the self-employed category as a printing press franchiser. This was the applicant's second application for permanent residence, her first application made in Riyadh, Saudi Arabia was rejected by letter dated June 20, 1993.
[4] The applicant's husband, who it appears has two wives, landed in Canada with her three children on October 7, 1994. She is his second wife, and the children live with her husband and his first wife. The applicant attended an interview on October 21, 1997 at the Canadian Embassy in Damascus. By letter dated January 11, 1998, the applicant's application was rejected (see letter of refusal at pages 10 & 11 of respondent's Application Record).
[5] The applicant submits that the visa officer erred in placing too much emphasis on the applicant's lack of business experience and in concluding that she did not qualify under the definition of self-employed person. It is also submitted that the officer took into consideration irrelevant considerations such as the fact that the applicant was the second wife of her husband in dismissing her application. The applicant also submits that she was denied fairness by the visa officer.
[6] The respondent submits that the officer's discretion was properly exercised in her assessment of the applicant's application and that the officer did not solely consider the applicant's lack of experience in coming to a decision. Further, it is submitted that the officer did not err in taking into consideration the applicant's marital arrangement, as it had been raised by the applicant's counsel, and that the applicant was given the opportunity to respond to such an arrangement when counsel for the applicant replied to the officer's concerns by facsimile. As a general proposition, it is submitted that a visa officer may consider whether the admission of parties to a bigamous marriage or a polygamous marriage would be contrary to the Immigration Act and the laws of Canada.
[7] The applicant raises two issues of substance:
| 1) Did the visa officer err in determining that the applicant was not qualified under the self-employed category? |
| 2) Did the visa officer take into account irrelevant considerations in refusing this applicant - in particular that she was the second wife of a Canadian citizen? |
Self-employed person
[8] The applicant argues that the officer erred in placing too much emphasis on the applicant's lack of formal business experience in determining whether she would become successfully established in Canada as a self-employed person, and in concluding that she had failed to meet the definition of a self-employed person.
[9] The respondent submits that the visa officer did not err in her decision. It is submitted that the officer's decision was discretionary in nature and that the officer did not base her complete assessment on the sole fact that the applicant had never been previously self-employed. Further, it is submitted that the applicant failed to show that the officer misconstrued the definition of self-employed person or failed to carry out a proper assessment.
[10] The same issue was recently argued, in Lobzov v. Canada (M.C.I.), (F.C.T.D., July 10, 1998, IMM-3316-97). In Lobzov, supra, Justice Rothstein states the following:
The applicant says the visa officer erred by basing his refusal solely on the applicant's lack of past business experience and in so doing, placed undue emphasis on this consideration. The applicant relies on cases such as Grube v. Canada (Minister of Citizenship and Immigration) (1996) 34 Imm L.R. 2d 219, in which MacKay J. stated at page 227:
| That experience, as a self-employed person, may well be a factor to be favourably considered when determining whether an applicant is likely to become successfully established as a self-employed person in Canada, but it is not the sole criterion to be considered, and it must be considered in light of the occupation sought to be undertaken in Canada. It may be of greater significance in relation to certain occupations than it is to others. |
| ... |
However, I do accept that past business experience is not the sole criterion to be considered, that it must be considered in light of what is intended to be undertaken in Canada and that it may be of greater significance in relation to some undertakings than others.
[11] In this case, the decision shows that the officer did place some emphasis on the applicant's lack of business experience as a self-employed person, and indicated this concern in her reasons for rejection: "You have no previous experience as a self-employed person". The officer also considered the applicant's limited experience as a manager of Arwa Printing and Advertising Services where she did not have the responsibility for personnel, finance or overall business decisions of the company as these were handled by a Director as she herself told the visa officer during her interview. The officer also considered that the experience in the field of printing was somewhat dated since the applicant indicated that she left the position in 1990. Further, the officer considered the conflicting evidence with respect to the applicant's occupation since 1990 and determined that it should not be given much weight. However, it is clear from the officer's decision that she did not solely consider the applicant's lack of business experience as a self-employed person. Consideration of the application was given on H & C grounds (see page 2 of letter of refusal).
[12] Mr. Justice Rothstein in Du v. Canada (M.C.I.)(F.C.T.D., February 25, 1998, IMM-1123-97) states a person's experience as a self-employed person or the lack thereof should be given more or less emphasis depending on the nature of the contribution the person is intended to make in Canada. Justice Rothstein states:
Where the contribution to be made is artistic or cultural, past business experience, even in the cultural or artistic field in question may be of little importance, especially when the applicant wishes to be a self-employed teacher. However, where the contribution is to the Canadian economy and there is therefore greater emphasis on the commercial nature of the business, past business experience may be quite important.
[13] In the present case, the applicant intended to create and operate a printing company in Nova Scotia. In light of the commercial nature of the business, I am not convinced that the officer placed too much emphasis on the applicant's lack of business experience as a self-employed person.
[14] Moreover, it is trite law that this Court will not intervene where a visa officer exercised his or her discretion in good faith and in accordance with principles of natural justice and where irrelevant factors were not considered: (To v. M.E.I. (F.C.A., May 22, 1996, A-172-93)). I am satisfied that this Court should not intervene with regard to the visa officer's decision relating to the issue of self-employment.
Marital arrangements
[15] The applicant argues in her written submissions that the visa officer erred in taking into account irrelevant considerations such as the fact that she was the second wife of a Canadian citizen and denied the applicant procedural fairness by depriving her of the opportunity to respond to the issue of an alleged bigamous arrangement. Counsel for the applicant made no particular submissions on this point during the hearing.
[16] The respondent submits that the officer did not err in considering the applicant's marital arrangement. It is not open to counsel to submit that the officer should not have considered such information in her assessment when it was applicant's counsel who first raised the family situation. The applicant had a fair opportunity to present information in this respect when the officer communicated by facsimile with the applicant's counsel regarding the applicant's family arrangement, to which he also replied by facsimile dated November 27, 1997. The issue of the children was a consideration with regard to the H & C application and I see no error in the visa officer's decision concerning the issue of the children.
[17] I am in agreement with the respondent's submissions. The officer did not consider any irrelevant information to the applicant's application. It appears that the family arrangement was raised by the applicant and that, as a general proposition, a visa officer may consider whether the admission to Canada of parties to a bigamous marriage or a polygamous marriage would be contrary to the Immigration Act and the law of Canada (Bahig Mohamed Skaik Ali v. M.C.I. (IMM-613-97), November 2, 1998). Also, I am of the view that the applicant's family arrangement was not determinative of the decision to reject her application for residence in Canada and does not warrant the intervention of this Court.
[18] The applicant did not establish that the visa officer erred in assessing whether the applicant could successfully establish herself in Canada as a self-employed person. The applicant intended to make a commercial contribution by opening a printing company and the officer did not place too much emphasis on her lack of business experience as a self-employed person. Also, her lack of experience as a self-employed person did not constitute the sole basis for the officer's decision.
[19] The applicant did not establish that the visa officer erred in considering the applicant's marital arrangement. The family status was raised by the applicant's counsel; the applicant had an opportunity to respond to these issues; and as a general proposition, visa officers may consider bigamous or polygamous marital arrangements to determine whether admission to Canada would be contrary to the Immigration Act and the laws in Canada.
[20] The application for judicial review is denied.
REQUEST FOR CERTIFICATION
[21] In his letter of January 20, 1999, counsel for the applicant asks that the following question be certified:
Question 1:
Given the support of the Federal Court of Appeal in Wang (1991 F.C.J. No. 10, A-1136-88) and Gaffney (1991 FCJ No. 7 A-253-89) as to principle that material not supported by affidavit is not before the Court and that the reasons for the decision of the visa officer constitutes no more than the decision of the visa officer and is not evidence of the manner in which the visa officer gave his decision, was it proper for the Respondent to rely on the CAIPS notes and the refusal letter as evidence of what the visa officer considered in the exercise of his discretion; in that vein and based upon the two decisions in question, does the presumption in favor of the propriety of a visa decision (per Mahoney J in Wang) cease in the absence of an affidavit by the Respondent.
The recent case of Moldeveanu (A-413-97, Stone J.A., Strayer J.A. & Decary J.A.) uncovered this morning and attached hereto, in the Federal Court of Appeal refers to this principle in so far as it applied to the requirement for an Applicant"s affidavit.
Therefore the question to be certified is whether or not this principle of admissibility is applicable to the Respondent; and do the production of the CAIP notes in the certified visa record relieve the Respondent of the necessity of filing an affidavit in support of the Respondent"s position.
This is a question of generic public importance because the failure of the Respondent to file an affidavit precludes an applicant from conducting a cross examination. Furthermore, a decision based upon the acceptance of unsworn evidence from CAIP notes and the refusal letter is determinative of the issues in this case.
[22] I am satisfied, after reading the jurisprudence and the written submissions made, that the request for certification should be denied.
[23] It is for the parties to present their case to the Court in the best manner possible. The onus is on an applicant to demonstrate a basis for the Court to intervene in a decision of a visa officer. Both parties submit the evidence that they wish to. I am satisfied that there is no requirement for a respondent to file an affidavit of the visa officer if that is the decision taken by the respondent.
[24] I agree with counsel for the respondent when she states in her letter of January 22, 1999:
It is also clearly established by the existing jurisprudence that the decision which is the subject of the judicial review application is properly to be considered by the Court. It is evidence of the decision made by the visa officer and the reasons he made it. The onus is on the applicant to marshall evidence to rebut the presumption that the proceedings were conducted fairly and in accordance with the law, (See: Wang v. M.E.I. [1991] 2 F.C. 165 (C.A.) and Gaffney v. M.E.I. (1991) 121 N.R. 256 (F.C.A.).
[25] The request for certification is denied.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
January 26, 1999