Date: 20000721
Docket: IMM-6169-98
BETWEEN:
SEYED AHMAD ALIMARD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] This is an application for judicial review of the decision of a visa officer at the Canadian Embassy in Ankara, Turkey, dated October 19, 1998, denying the applicant's application for permanent residence in Canada under the category of "entrepreneur".
[2] The applicant, a citizen of Iran, graduated from secondary school in 1965. In 1969, he began working for the Iran Tobacco Company ("ITC") as an accountant. At the time of the interview, he was the supervisor of fifty one employees in the Supply and Sales Department of this company.
[3] The applicant also worked afternoons/evenings and weekends from 1981 to 1996 at the Mehr Confectionary ("Mehr") where he trained and worked as Master Confectioner and from 1996 to the date of the interview as a Master Confectioner at the Bano Confectionery ("Bano").
[4] In the application for permanent residence, the applicant stated he intends "to open a bakery/retail shop offering sweets, pastries, ice cream etc." in Toronto.
[5] In support of his application, he provided letters of reference from ITC, Mehr and Bano confirming his employment.
[6] The visa officer concluded the applicant did not meet the definition of entrepreneur. In the letter advising the applicant of her decision, she stated:
| ... I am of the opinion that, you do not meet this definition [entrepreneur] because you have not demonstrated such an ability. You have never owned and operated your own business. The information provided during your interview on September 16, 1998 on your business experience did not convince me that you have the ability to establish a viable business in Canada. Your total funds available appear to be insufficient for personal and business purposes. In addition, you have not visited Canada to examine your business prospects, you are unfamiliar with Canadian business practises and the Canadian business environment. |
[7] The applicant first submits the visa officer erred in law in her interpretation of the definition of "entrepreneur".
[8] The applicant argues that prior ownership and operation of a business is not part of the definition of entrepreneur and as such constitutes an irrelevant consideration. In support of this argument, the applicant cites So v. Minister of Citizenship and Immigration, (1998) 46 F.T.R. 67 where Dubé J. stated:
| There is nothing in the Regulations which specifically requires that an applicant under the entrepreneur category have the prior experience of running or managing a business.... |
| [9] This issue was earlier addressed in Hui v. Canada (Minister of Employment and Immigration) [1986] 2 F.C. 96 at 102 where Stone J.A. explained that the definition of entrepreneur is complete. He stated: |
| ... Importation of a "proven track record in business" into that definition would mean that some applicants for permanent residence under this category could never meet the "ability" requirement. As I read it, the language of that definition does not close the door to an applicant who happens to lack such a record. It requires simply that the applicant have the required "ability". If it were otherwise, no applicant could meet that requirement without first establishing "a proven track record in business". That, plainly, was not intended by the language used. |
| [10] This decision, however, has been distinguished where ownership was not the only factor considered by the visa officer. For example, in Zhen v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. No. 1537 Heald J. stated: |
| ... When the decision of the visa officer is read in its entirety, it is evident that the visa officer did not consider ownership of a business to be the only or most important indicia of ability... |
| [11] With respect to the applicant"s experience at Bano, the visa officer stated in the CAIPS notes: |
| ... The confectionary shop he manages is a small size business and does not belong to him. He is only managing the shop. Has no real financial risque [sic] and he does not run the business only manages the shop... |
[12] Although the visa officer in reaching her decision also considered the sufficiency of the applicant"s funds and his knowledge of the Canadian business environment, her assessment of his experience was within the context of the applicant not having owned or operated his own business. This led to the visa officer giving little, if any, weight to the applicant"s extensive prior experience in the confectionery business. In effect, she was looking for a "proven track record" of either ownership or operation. In my view, she erred in this regard.
[13] The applicant also submits the visa officer breached her duty of fairness to the applicant by failing to indicate to the applicant prior to refusing his application for permanent residence her concerns as to the reliability of the valuation submitted.
[14] The visa officer was not satisfied the applicant had sufficient funds for business and personal purposes in Canada. To support his claim of a personal net worth of approximately $335,000 Cdn, the applicant submitted several deeds to his properties, a valuation for one of the properties and a bank statement showing a balance equivalent to $5,000 Cdn. Based on her experience with respect to the reliability of real estate valuations from Iran and her lack of familiarity with the organization which had prepared the valuation, the visa officer gave no weight to the one valuation provided. The applicant was unaware of the visa officer"s concerns with respect to the valuation until he received the letter rejecting his application for permanent residence.
[15] In situations such as this, the jurisprudence is clear that where a visa officer has an impression of deficiency in the proof being offered, fairness requires that the visa officer give the applicant some opportunity to disabuse the visa officer of that impression (Muliadi v. Canada (Minister of Citizenship and Immigration) [1986] 2 F.C.J. 205).
[16] As the visa officer"s finding that the applicant lacked sufficient funds was a key factor in her assessment of his ability to successfully establish a business in Canada, the applicant should have been given the opportunity to address her concerns. He may have been able to provide her with evidence as to the bona fides of the valuation or a new valuation.
[17] The respondent argued that it was the failure of the applicant to submit valuations for all of his properties which resulted in the visa officer being unable to make a proper assessment of the applicant"s financial ability. As was explained in Muliadi, supra , this does not "relieve the visa officer of the duty to act fairly".
[18] Finally, the applicant submits the visa officer based her decision on erroneous findings of fact without regard to the evidence before her.
[19] It is evident from the CAIPS notes, the visa officer thought the applicant claimed to have a profit-sharing interest in Bano. The application for permanent residence and the letter from Mehr, however, make it clear the applicant"s profit-sharing interest was in Mehr. This mistaken understanding caused the visa officer to question the applicant"s credibility when he was unable to produce documentation to prove a financial interest in Bano. Although the visa officer attempted to remedy this error in her affidavit filed on this application, I am satisfied that at the time of the interview and when she reached her decision she was mistaken as to the facts.
| [20] Further in the CAIPS notes the visa officer described that applicant"s duties at Mehr as: |
| He is responsible to keep their records and setting the prices and supervises the product" |
| The letter of reference from Mehr states: |
| ... Mr. Seyed Ahmad Alimard, has been working in Mehr Confectionery as master in confectionery affairs on work and investment basis ... for approximately 13 years and he has been in charge and management of production workshop and pricing of types of products and employment and dismissal of workers and payment of their salary... |
[21] There is no reference in the CAIPS notes made on the day of the interview to this letter. Nor is there any reference to the applicant"s work at Mehr in the summary notes made by the visa officer on the day she reached her decision. Although the visa officer is not required to identify each piece of evidence relied upon in reaching a decision, in this case, the visa officer"s characterization of the applicant"s duties at Mehr, leads one to conclude that she did so without regard to the letter of reference from Mehr. As the applicant"s work experience at Mehr is highly relevant to an assessment of his ability to establish his proposed business in Canada, her disregard of this evidence in concluding that he did not have the ability to successfully establish a business in Canada constitutes reviewable error.
[22] For these reasons, the application for judicial review is allowed and the matter is remitted back for reconsideration by a different visa officer.
[23] Neither party had a question to submit for certification.
"Dolores M. Hansen"
J.F.C.C.