Federal Court Decisions

     IMM-979-96

BETWEEN:

     MAHMOOD BIAG MIRZA,

     Applicant,

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

(Delivered orally from the Bench on October 24, 1996,

in Toronto, Ontario, as edited)

LUTFY J.:

     I have not found in any of the applicant's materials or in his counsel's oral representations today, a legal or factual basis to warrant interfering with the decision of the visa officer.

     The affidavit evidence of the visa officer is compelling. At paragraph 11, after reviewing the applicant's assets in the United States and in Pakistan, she concluded that:

I verified with the Applicant that this would be a total of approximately Cdn. $100,000 and he agreed. The Applicant also indicated that he owned a house in Pakistan that he said was worth approximately U.S. $40,000. I did not see proof of ownership of this property, nor evaluation of this property. He also did not provide an evaluation for his business in the United States.

     At paragraph 13 she continues:

At the Applicant's request, I reviewed his application again after the interview but came to the same conclusion, that he did not meet the requirements of an entrepreneur. The business he has in the United States makes a very small profit. The Applicant plans to invest all his assets into his proposed business venture in Canada. The Applicant's wife is a housewife with no work experience. I did not consider that the Applicant would be able to open or buy a business in Canada and at the same time support himself, his wife, and his four children.

     On the basis of this factual evidence, and in light of the definition of "entrepreneur" in the Regulations, the visa officer came to the conclusion that the applicant's business proposal did not constitute, "a substantial investment in a business or commercial venture in Canada". She also concluded that his business venture would not make "a significant contribution to the economy".

     In my view, the visa officer's decision was based upon facts on which there was substantial agreement between the parties. In the circumstances, there was no need for the visa officer to provide an opportunity to respond to contentious issues of a factual nature, which did not exist.

     In conclusion, this judicial review cannot succeed on the basis of the test enunciated by the Supreme Court of Canada in 1972 in Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 874, and, more particularly, on the basis of the following extract from D.R. Fraser and Co. Ltd. v. The Minister of National Revenue, [1949] AC.24, which is relied upon by the Supreme Court of Canada at p. 877:

The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if a discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.

     On the basis of all of the above, the application for Judicial Review is dismissed.

                         Allan Lutfy

                         Judge

Ottawa, Ontario

January 29, 1997