Date: 20010410
Docket:IMM-3305-99
Neutral citation: 2001 FCT311
BETWEEN:
MIRZA BAIG,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
[1] This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amemded, heard in Toronto on August 21, 2000, brought by the applicant, Mr. Mirza Baig ("applicant"), against the decision of a Visa Officer at the Canadian High Commission, Immigration Section, London, England, on June 4, 1999, refusing the applicant's request for a Canadian Employment Authorization.
[2] The applicant seeks an order referring the matter to a different Visa Officer for redetermination. In the alternative, a writ of mandamus is sought directing the respondent to process the applicants' request for an Employment Authorization in Canada in accordance with the direction of this Court.
Facts
[3] The applicant was born in Delhi, India, and has been living in the United Kingdom since 1964. Both he and his wife are British citizens.
[4] The applicant first came to Canada as a visitor in August, 1997. He returned in December, 1997, at the urging of Canadian friends, and he purchased a small business, JK Style Donuts, in Mississauga, Ontario. At that time, he also purchased two condominium units in anticipation of applying as an "entrepreneur" under the business class for permanent residence in Canada.
[5] In furtherance of his intention to apply for permanent residence, the applicant retained a lawyer in Toronto to prepare and submit the application for immigration. Approximately 14 months later the applicant learned that the application had not been submitted on his behalf. The applicant then determined to sell his business and other property and return to the United Kingdom to resume residency.
[6] Subsequent to the purchase of the business, the applicant entered Canada frequently as a visitor to oversee business operations under a full-time manager that he employed, in addition to three other full-time staff. He stated in the interview with the visa officer that he has never worked illegally in Canada.
[7] As a result of the negative experience the applicant suffered at the hands of his lawyer, the applicant determined he should assume responsibility for the daily management of the business with a view to selling it as a going concern rather than rely on an agent. It was on this basis that the applicant applied for, and was ultimately refused, an Employment Authorization ("EA") for Canada.
Applicant's Submissions
[8] The applicant urges that by obtaining an EA to work in Canada, he will be able to participate in the daily operation of his business, thereby facilitating its sale as a going concern and preventing the lay-offs of four full-time employees. The applicant asserts this position was adequately presented in both the interview and in the cover letter attached to the initial EA request.
[9] The applicant submits that he requires an EA to allow him to legally work and live in Canada for at least one year so that he may realize his stated plan for the sale of his business. Moreover, in the absence of an EA, the applicant is of the opinion he will be forced to close his business and lay-off employees in order to sell it, thereby acting in detriment to the Canadian economy. However, should the EA be granted, he will be in a position to maintain the employment of his staff and the viability of the business, and act for the benefit of Canadians.
[10] It has been urged that the visa officer, in making the determination to refuse the EA application, ignored submissions made in the covering letter, thus failing to consider all the available evidence. Furthermore, the applicant urges that the visa officer made an erroneous finding of fact in determining that an EA is unnecessary for the sale of the applicant's business, and, by failing to undertake a meaningful interview to clarify any factual mis-understandings, the applicant was denied natural justice.
Respondent's Submissions
[11] In her affidavit, the visa officer states that, at the interview, the applicant presented no proof of ownership regarding the business. Moreover, the respondent asserts that the applicant's primary reason for requesting an EA was to quell the suspicions of Immigration authorities at ports of entry with respect to his frequent stays in Canada, rather than to ensure that "things are done properly" with respect to the sale of his business, although it is acknowledged that the latter concern is a factor in the applicant's decision to seek an EA.
[12] At the hearing, the respondent urged that it was not clear why the applicant's presence in Canada was necessary for the sale of his business. The respondent further urged that the applicant was unable to convince the visa officer that his intended stay in Canada was to be temporary. This was based on, inter alia: the applicant's request for an open employment authorization for one year; his inability or unwillingness to indicate how long he would need to stay; and, when asked, his unwillingness to answer with certainty whether he intended to abandon his application for immigration under the business class.
[13] In response to the applicant's allegations that the visa officer failed to provide him with an opportunity to respond to concerns arising from the requirements as set by the Immigration Regulations, 1978 (the "Regulations"), the visa officer asserts that those concerns were outlined at the commencement of the interview so as to provide the applicant with an opportunity to reply.
[14] In response to applicant's counsel's request for the EA to be granted under the Validation Exemption Codes E01 and E19, pursuant to s-s. 20(5)(e) of the Regulations, the visa officer, after consideration and consultation, found that the stated codes were not applicable in the circumstances. Moreover, no other codes were found to be applicable in providing for the issuance of an EA to the applicant.
[15] In all the circumstances, the visa officer determined that an EA was not necessary for the applicant to sell his business and the applicant's request was refused.
Visa Officer's Decision
[16] In light of the guiding decisions of Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, it is recognized that discretionary decisions of immigration officials ought to be afforded considerable deference on judicial review.
[17] In Maple Lodge Farms, supra at 7-8, Justice McIntyre stated for the Court:
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.
[18] I am of the same opinion as Madam Justice Reed in Liu v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 251 (T.D.), where she states: "I do not read the Baker decision as making a fundamental change in the applicable standard of review," at least in relation to administrative discretionary decisions. Further, Madam Justice Reed commented at paragraph 21:
Throughout the Baker decision, there are passages that indicate that the immigration officer's decision must be reasonable, that the officer must exercise his discretion in a reasonable manner, with consideration given to the particular circumstances of the case.
[19] In Baker, supra, Madam Justice L'Heureux-Dubé, for the Supreme Court of Canada, elaborated the application of the standard of review appropriate in cases of discretionary decisions. In part, she wrote, at pages 55-56:
... the pragmatic and functional approach takes into account considerations such as the expertise of the tribunal, the nature of the decision being made, and the language of the provision and surrounding legislation. It includes factors such as whether a decision is "polycentric" and the intention revealed by the statutory language. The amount of choice left by Parliament to the administrative decision-maker and the nature of the decision being made are also important considerations in the analysis. The spectrum of standards of review can incorporate the principle that ... the legislature has demonstrated its intention to leave greater choices to decision-makers than in others, but that a court must intervene where such a decision is outside the scope of the power accorded by Parliament.
... The pragmatic and functional approach can take into account the fact that the more discretion that is left to a decision-maker, the more reluctant courts should be to interfere with the manner in which decision-makers have made choices among various options. However, though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.
[20] The Regulations specify in s. 18:
(1) Subject to subsections 19(1) to (2.2), no person, other than a Canadian citizen or permanent resident, shall engage or continue in employment in Canada without a valid and subsisting employment authorization.
The applicant does not fall within the EA exemptions outlined in s. 19 of the Regulations. Thus, should he choose to engage in employment activities at any time while in Canada, he must be in possession of a valid and subsisting EA. Whether the activities described in his request for an EA, and at the interview, constitute "employment" within the context of the Immigration Act R.S.C. 1985, c. I-2, as amended (the "Act"), is an issue raised by the applicant.
[21] Section 2 of the Act defines "employment" as "any activity for which a person receives or might reasonably be expected to receive valuable consideration." In the Federal Court of Appeal decision in Georgas v. Minister of Employment and Immigration, (1979) 1 F.C. 349, Mr. Justice Le Dain, speaking for the Court, held that the definition of "employment" must include an element of flexibility. In any case where employment under the Act is in question, courts must resolve two questions: 1) what is the nature of the work and the circumstances under which it was performed; and, 2) was it work which might well have deprived someone else of gainful employment? In answering these queries in conjunction with the legislative definition, in this case one must find that should the applicant undertake the activities outlined, ie. overseeing the daily operation of his business and training the buyer, he would not be engaging in employment.
[22] The applicant has repeatedly stated that he employees a full-time manager who currently oversees the day-to-day operation of the business. At no point during the application process for the EA has he indicated that should he receive the authorization he would lay-off that manager. In fact, he has asserted that he requested the EA so he would not have to do just that. Since he would not be replacing an employee the applicant has demonstrated he would not be depriving another individual of gainful employment should he assume responsibility for the daily operation of the business. Moreover, it is arguable that he would not reasonably expect to receive "valuable consideration" for that function as he is already compensating an employee for those duties. Moreover, as owner, the applicant's main concern is the viability and sale of the business, not his own continuing remuneration.
[23] Furthermore, the applicant has continually expressed his primary concern to oversee the operation of the business and maintain its viability so that he may sell it as a going concern, thereby preventing closing it completely and effecting the lay-offs of four employees. Therefore, the "work" undertaken may reflect managerial duties, but the circumstances under which they are to be performed are those seeking to effect the sale of the business, not the furtherance of the applicant's day-to-day compensation.
[24] The applicant's request for an "open employment authorization" contravenes the stated eligibility requirements which provide that one should not be issued unless an applicant may be issued an EA which is exempt from validation under Regulation 20(5). In this case, subparagraph (e)(i) of that provision is not applicable to the applicant as he is the employer, not an employee. The decision to maintain the employment of the staff is his regardless of his employment status, and the threat to suspend the employment of Canadian citizens or permanent residents in the absence of being granted an EA is not a valid consideration in these proceedings.
[25] The visa officer considered a number of factors before ultimately determining that an EA was not to be issued under the circumstances. One of the main concerns attested to by the visa officer was the fact that the applicant could not say with certainty that he had completely abandoned the notion of applying under the business class for permanent resident status in Canada. Two facts contributed to the visa officer's hesitation on this point: 1) the applicant's history of frequent and lengthy stays in Canada; and, 2) the applicant's admission in his affidavit that during the application process for the EA he "lived in, and am living in, Toronto, Canada." These are not clear indications of a visitor's state of mind, nor of an intention to remain in the country temporarily.
[26] In the cover letter attached to the EA request and during the interview, the applicant asserted that he distrusted lawyers because of his previous experience surrounding the application for permanent residence, and he chose not to rely on a third party to conduct the sale of his business. In his opinion, he wanted to ensure that "things were done properly." However, the applicant also stated he had already engaged a real estate agent to encourage the sale of the business. In the view of the visa officer, inconsistencies in the applicant's attitude toward professional assistance demonstrate that his physical presence with an EA entitling him to work during the sale is not as essential for the sale of the business as it has been professed to be.
Conclusion
[27] The onus is on the applicant to meet the burden of proof. The visa officer was not satisfied that the applicant had done so. She was not persuaded that an EA was essential to ensure the sale of the business in Canada. The applicant had already engaged a real estate agent for purposes of the proposed sale. Moreover, he failed to conclusively demonstrate to the visa officer that he intends to abandon his application for permanent residence in Canada. The findings of the visa officer were made after full consideration of all the circumstances, and in good faith. The decision was based on the evidence before the visa officer and the determination to refuse the applicant's request for an EA was not unreasonable.
[28] In the circumstances, there is no basis for the Court to intervene and the application for judicial review is dismissed.
Question for Certification
[29] At the conclusion of the hearing of this matter, counsel for the applicant orally submitted the following question for certification pursuant to s-s. 83(1) of the Act.
Does a Visa Officer, in considering an application for employment authorization, have a duty to direct questioning to bring forth responses concerning the full background of the application?
Counsel for the respondent objected to certification of the proposed question.
[30] In my opinion, the question is not "a serious question of general importance." It arises in relation to the applicant's view of the facts in this case. Moreover, it ignores the obligation on the applicant to establish his or her claim for relief. The proposed question will not be certified.
[31] An Order goes dismissing this application.
(signed) W. Andrew MacKay
___________________________
JUDGE
OTTAWA, Ontario
April 10, 2001