Ottawa, Ontario, June 19, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Habibul Hoque is a Bangladeshi citizen, who applied for permanent residence in Canada under the entrepreneur category. His application for a visa was turned down because he had allegedly failed to provide documentary proof that his company had employed between 10 and 12 employees during the relevant period.
[2] Mr. Hoque now seeks judicial review of the visa officer's decision, asserting that the officer erred in failing to properly consider relevant evidence that was before him in assessing Mr. Hoque's application.
[3] For the reasons that follow, I am satisfied that the officer did not err, and, as a result, the application for judicial review will be dismissed.
Background
[4] Mr. Hoque's application was based upon his ownership interests in two businesses - Q.N.S. Container Services Ltd. and Project Link Services (PLS). Only PLS is in issue in this application.
[5] Mr. Hoque is the sole owner of PLS. According to Mr. Hoque's application form, PLS allegedly employed between 10-14 full-time employees in the five years preceding his application. The application form also includes a declaration by Mr. Hoque that the contents of the application are truthful, complete and correct.
[6] In support of his application form, Mr. Hoque provided the visa officer with a copy of audited statements for PLS for the financial years between 1998 and 2002. These statements disclose that in the years in question, PLS spent between 480,000 and 594,000 Bangladeshi Taka on "Salary and Allowances". The statements also show that "Salary and Allowances" represented the single largest type of expenditures for the company for each of the years in question.
[7] There is, however, no indication in any of the financial statements as to how many individuals were employed by PLS in any given year.
Mr. Hoque's Position
[8] Mr. Hoque asserts that the record before the visa officer contained sufficient proof of the fact that PLS employed 10-14 full-time employees during the relevant period. Mr. Hoque points to the fact that he had solemnly declared the contents of his application form to be true, submitting that the presumption of truthfulness should apply to solemn declarations, just as it does to testimony under oath.
[9] Not only was there no reason to doubt the contents of his declaration, Mr. Hoque says, in fact the financial statements that he provided for PLS actually corroborate it. As a result, he asserts that the finding of the visa officer that he had failed to provide documentary evidence to substantiate his claim that PLS had employed 10-14 full-time employees during the preceding five years effectively amounted to a finding that he was not credible. In such circumstances, procedural fairness required that the visa officer confront Mr. Hoque with these concerns, and afford him an opportunity to address them.
Standard of Review
[10] Neither party addressed the question of the appropriate standard of review in their memoranda of fact and law or in their submissions.
[11] It is not necessary to go through a pragmatic and functional analysis in relation to a question of procedural fairness - it is for the Court to determine whether the procedure that was followed in a given case was fair or not, having regard to all of the relevant circumstances: Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404, at ¶ 52-53.
Analysis
[12] In order to succeed in his application for permanent residence, Mr. Hoque had to demonstrate that PLS met the requirements of section 88(1) of the Immigration Regulations. Section 88(1) defines a "qualifying business" as:
| "qualifying business" means a business - other than a business operated primarily for the purpose of deriving investment income such as interest, dividends or capital gains - for which, during the year under consideration, there is documentary evidence of any two of the following:
(a) the percentage of equity multiplied by the number of full time job equivalents is equal to or greater than two full-time job equivalents per year;
(b) the percentage of equity multiplied by the total annual sales is equal to or greater than $500,000;
(c) the percentage of equity multiplied by the net income in the year is equal to or greater than $50,000; and
|
« entreprise admissible » Toute entreprise - autre qu'une entreprise exploitée principalement dans le but de retirer un revenu de placement, tels des intérêts, des dividendes ou des gains en capitaux - à l'égard de laquelle il existe une preuve documentaire établissant que, au cours de l'année en cause, elle satisfaisait à deux des critères suivants : a) le pourcentage des capitaux propres, multiplié par le nombre d'équivalents d'emploi à temps plein, est égal ou supérieur à deux équivalents d'emploi à temps plein par an; b) le pourcentage des capitaux propres, multiplié par le chiffre d'affaires annuel, est égal ou supérieur à 500 000 $; c) le pourcentage des capitaux propres, multiplié par le revenu net annuel, est égal ou supérieur à 50 000 $;
|
| (d) the percentage of equity multiplied by the net assets at the end of the year is equal to or greater than $125,000. [emphasis added]
|
d) le pourcentage des capitaux propres, multiplié par l'actif net à la fin de l'année, est égal ou supérieur à 125 000 $. |
[13] Contrary to Mr. Hoque's position, a review of the visa officer's reasons discloses that the officer did not make an adverse credibility finding against him. Rather, the officer's decision was based upon the fact that he had not provided documentary evidence to establish the number of full-time employees employed by PLS.
[14] Clearly the reference to documentary evidence in section 88(1) refers to something apart from the application form itself. The documentary evidence before the visa officer in this case demonstrated that PLS spent between 480,000 and 594,000 Bangladeshi Taka on "Salary and Allowances" in the years in issue. While this evidence would, on its face, corroborate that PLS had employees, it sheds no light on how many employees were employed by the company at any given time, nor does it assist in determining how many full time job equivalent positions there were at PLS during the period under review.
[15] As Justice Evans noted in Madan v. Canada(Minister of Citizenship and Immigration) [1999] F.C.J. No. 1198:
It is well established that it is the responsibility of a visa applicant to put before the officer all the material necessary for a favourable decision to be made. Hence, visa officers are under no general legal duty to ask for clarification or for additional information before rejecting a visa application on the ground that the material submitted was insufficient to satisfy the officer that the applicant had met the relevant selection criteria. [at ¶ 6]
(See also Tahir v. Canada(Minister of Citizenship and Immigration) [1998] F.C.J. No 1354, at ¶ 8, to the same effect.)
[16] In the absence of a duty on the part of the visa officer to seek out additional information regarding the number of individuals employed by PLS at the relevant times, it follows that there has been no breach of procedural fairness here.
Conclusion
[17] For these reasons, the application for judicial review is dismissed.
Certification
[18] Neither party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is dismissed; and
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5780-05
STYLE OF CAUSE: HABIBUL HOQUE v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 14, 2006
REASONS FOR JUDGMENT
AND JUDGMENT BY: Mactavish J.
APPEARANCES BY:
Mr. Max Chaudhary FOR THE APPLICANT
Mr. Robert Bafaro FOR THE RESPONDENT
SOLICITORS OF RECORD:
Max Chaudhary
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT