Date: 20001024
Docket: IMM-3945-99
BETWEEN:
CHAUDHRY MOHAMMAD ASLAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Mr. Aslam, the applicant, is a 62 year old citizen of Pakistan who on September 19, 1996 applied for permanent residence in Canada under the category of an Entrepreneur. Mr. Aslam brings this application for judicial review of a decision of Robert McLeman, Vice Consul at the Canadian Consulate General in Seattle, Washington, dated July 5, 1999, whereby Mr. Aslam's application was refused.
THE FACTS
[2] The material submitted in support of Mr. Aslam's application stated that Mr. Aslam graduated from the Pakistan Military Academy in 1962. There followed a long and successful career in the military, which lasted until 1988 when Mr. Aslam retired from the military with the rank of Colonel.
[3] Throughout his military career, Mr. Aslam specialized in ordinance, management and material logistics. His duties included procurement, inventory control, supply and management.
[4] After his retirement, Mr. Aslam began a consulting business by which he served as a consultant to various Pakistani companies that used his services for the purpose of structuring bids for government contracts. In 1990, Mr. Aslam began providing consulting services through Shamoun International, a company he incorporated. This company apparently brokered both military and civilian purchases.
[5] In 1995, Mr. Aslam founded Kahuta Gases Ltd., a company which produced acetylene gas. Mr. Aslam was, and is, one of the Managing Directors of the company.
[6] Mr. Aslam's application showed that he also owned income producing property, including farms and a motel. Mr. Aslam's net worth was stated to be in excess of $2 million dollars.
[7] Mr. Aslam was interviewed by the visa officer on February 10, 1998. At that time, the visa officer and Mr. Aslam discussed Mr. Aslam's business plan for Canada, Mr. Aslam's business experience and his interests.
[8] There is some disagreement as to what was said at the conclusion of the interview.
[9] The visa officer, in an affidavit sworn in opposition to this proceeding, deposed that at the conclusion of the interview Mr. Aslam volunteered to provide, as evidence of the financial performance of his companies, information regarding the taxes that Mr. Aslam's companies paid. The visa officer also swore that with respect to Kahuta Gases Ltd., Mr. Aslam agreed to forward business, as well as personal income tax records relating to the most recent three-year periods.
[10] Mr. Aslam contended that at the conclusion of the interview, the visa officer requested that Mr. Aslam send either personal or corporate tax returns to the visa office. Mr. Aslam swore that at the end of the interview he agreed to provide some evidence of personal or corporate tax filings.
[11] Both the visa officer and Mr. Aslam are agreed that at the end of the interview the visa officer provided Mr. Aslam with a handwritten note setting out what was required. That note was not put in evidence. Thereafter, on February 11, 1998, the visa officer wrote to Mr. Aslam's solicitor purporting to reiterate that the visa office was expecting to receive income statements/balance sheets prepared by a reputable accounting firm for both Kahuta Gases Ltd. and Shamoun International for the past three years, plus business tax statements for the corresponding years, and personal and wealth tax returns for the past three years.
[12] The February 11, 1998 letter was sent to the wrong address, and according to Mr. Aslam's solicitor who assisted with the visa application, the letter was never received.
[13] What was ultimately provided by Mr. Aslam was a letter from a firm of accountants addressed to "Whom it may concern" certifying as to the income tax and wealth tax paid for the prior five years by Mr. Aslam.
[14] In material part, the visa officer's refusal letter stated as follows:
| Section 2(1) of the Immigration Regulations, 1978, defines an entrepreneur as an immigrant 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 dependents. He must also intend and have the ability to provide active and on-going participation in the management of the business or commercial venture. |
| The information contained in your application and that which you provided at your interview indicated that you have done little planning or preparation for engaging in business in Canada, and you have relied largely upon your accumulated wealth and your past and present experience in Pakistan as evidence of your ability to be an entrepreneur in Canada. It appeared to me, at the conclusion of your interview, that your entrepreneurial experience and success in Pakistan appears to have in large part stemmed from your connections, contacts and knowledge of procurement procedures in the Pakistani military. You did not demonstrate how such attributes would be of benefit to you in being an entrepreneur in Canada. |
| The documentation which you had provided prior to and during your interview did not fully illustrate your business activities in Pakistan. You did provide copies of a number of letters and agreements signed between yourself, Shamoun International (a company for which you claim to have been a managing director) and other companies for providing assistance in selling items to the Pakistani military, which resulted in payments for such services to offshore accounts. You confirmed at your interview that at least one such agreement, for assisting the sale of FIAT trucks to the military, you were paid to an offshore account. While these letters and agreements shed light on how you accumulated at least part of your personal net worth, I did not find them to be evidence that you possess the abilities required under the definition of entrepreneur given above. |
| I therefore requested at the conclusion of your interview that you provide me with financial statements prepared by a reputable accounting firm for your businesses in Pakistan (Kahuta Gases and Shamoun International) for the past three years, business tax records for these companies for the same three year period, and your personal and wealth tax returns for the past three years. I requested these documents so that I could obtain a better understanding of your business activities in Pakistan, and determine whether such activities would suggest that you have the ability to be an entrepreneur in Canada, as defined above. In response, you have sent a single letter prepared by Tahir Khan & Co Consultants stating the income/wealth taxes which you have paid since 1993, amounts which do not appear to have exceeded the equivalent of C$1,000 in any given year. You did not provide the requested documentation regarding your business activities in Pakistan. |
REGULATORY PROVISIONS
[15] Section 2 of the Immigration Regulations, 1978, SOR 78/172 ("Regulations") provides 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) |
« 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; (entrepreneur) |
| ISSUE |
| [16] Mr. Aslam asserted that the visa officer's decision that Mr. Aslam did not qualify as an Entrepreneur was unreasonable on the evidence before the visa officer. |
| ANALYSIS |
| [17] The nub of Mr. Aslam's complaint was that the visa officer's decision was tainted by what was characterized as an unreasonable scepticism. Mr. Aslam asserted that the visa officer's decision failed to recognize the applicant's business interests outside of military procurement, placed undue and unfair emphasis on the use of an offshore bank account without asking for an explanation as to the use of non-Pakistani banks, and that the visa officer failed accurately to convey to Mr. Aslam or his solicitor the further information which the visa office required. Mr. Aslam asserted that it was unreasonable for the visa officer not to express his concern about what he perceived as insufficient documentation, particularly in view of the fact that the officer held the application for 15 months before making his decision. |
| [18] Having reviewed the material before me, I conclude that Mr. Aslam has not shown that the visa officer's decision was not reasonably open to him on the evidence. It is trite law that the onus was on Mr. Aslam to provide all relevant information in support of his application for permanent residence (see: Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (F.C.T.D.)). |
| [19] I do not find the failure of the visa officer to mention specifically in the refusal letter Mr. Aslam's business experience and interests other than those related to military procurement to be a reviewable error. The CAIPS notes indicate that the visa officer did take account of those other business activities. It was reasonably open to the visa officer, based on the information provided by Mr. Aslam both with his application and during the interview, to conclude that Mr. Aslam's business activities focussed on the military equipment business. |
| [20] The visa officer did acknowledge in the refusal letter that Mr. Aslam had enjoyed entrepreneurial experience and success in Pakistan, but found that Mr. Aslam had not demonstrated how those attributes would be of benefit in being an entrepreneur in Canada. While the visa officer could have found that experience to be transferrable, he did not, and that was a finding which was reasonably open to him. |
| [21] With respect to the submission that the visa officer acted unfairly by failing to inform Mr. Aslam about the insufficiency of the documentation, the parties were in agreement that at the conclusion of the interview Mr. Aslam was given a written notice of the further documentation the visa office required. Mr. Aslam made no complaint that the handwritten note was in any way inaccurate. In that circumstance, and having regard to the onus on Mr. Aslam to provide all relevant information in support of his application, I cannot find any breach of the duty of fairness by the visa officer. |
| [22] I do agree with Mr. Aslam that some of the visa officer's comments in his refusal letter, for example the visa officer's reference to offshore accounts and the reference as to how part of Mr. Aslam's net worth was accumulated, were unfortunate and poorly worded. However, I do not find those comments to so taint the process that the visa officer's decision should be set aside. |
| [23] In summary, I find the inadequacy of the material provided by Mr. Aslam was sufficient to justify the visa officer's scepticism. |
| [24] The application for judicial review is therefore dismissed. Counsel did not pose any question for certification. |
| "Eleanor R. Dawson" |
| Judge |
| Ottawa, Ontario |
| October 24, 2000 |