Date: 20010926
Docket: IMM-146-00
Neutral Citation: 2001 FCT 1051
BETWEEN:
GHOLAM REZA MONZAVI-ZADEH
ZOHREH MONZAVI-ZADEH
HAMID MONZAVI-ZADEH
SAEID MONZAVI-ZADEH
NAVID MONZAVI-ZADEH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application is for the judicial review of a decision of the Appeal Division of the Immigration and Refugee Board ("the Appeal Board") dated December 13, 1999, wherein the latter dismissed the appeals of the applicants and found the departure orders issued against them to be valid in law.
Facts
[2] The applicants are former citizens of Iran. The principal applicant was landed in Canada on July 18, 1995, under the entrepreneur category subject to his compliance with the terms and conditions set out at paragraphs 23.1(1)(a) to (d) of the Immigration Regulations, 1978, SOR/78-172. His conditions required the principal applicant, within two years of landing, to establish, purchase, or make a substantial investment in a business or commercial venture within Canada so as to make a significant contribution to the economy.
[3] After being landed in Canada, the principal applicant abandoned his intention of establishing a textile finishing business in Canada as he found labour costs in this country too high. On September 15, 1996, he sought to vary his terms and conditions of landing on the basis that his investment of $170,000.00 in a Canadian company - S.E.S. Fire Seal Industries Ltd. ("the S.E.S. Fire Seal") led to the employment of several persons. On September 22, 1997, he wrote to an immigration officer advising that S.E.S. Fire Seal had been totally insolvent by January of 1997. However, he salvaged most of his investment.
[4] After an inquiry, the Adjudication Division found that the principal applicant was a person described in paragraph 27(1)(b) of the Immigration Act ("the Act"), namely a person who having been granted landing subject to terms and conditions knowingly contravenes any of those terms and conditions. Accordingly, departure orders in respect of the principal applicant and members of his family were issued to the applicants on September 30, 1998. Their appeals of these orders were dismissed.
The Appeal Board's Decision
[5] The Appeal Board found that the evidence indicated that the principal applicant was unable to comply with the terms and conditions subject to which he and other members of his family were landed and no evidence that he participated actively, on an ongoing basis, in the management of the S.E.S. Fire Seal. He continued to spend most of his time and energy with his textile company in Iran. Since S.E.S. Fire Seal never got off the ground, he could not have made any significant contribution to the Canadian economy. The principal applicant was landed as an entrepreneur and not as an investor.
[6] As to extenuating circumstances the Appeal Board noted that the close relatives of the principal applicant reside in Iran and he has continued to operate his textile business there.
Analysis
[7] The principal applicant arrived as an entrepreneur with a plan of establishing a textile finishing business in Canada and did not proceed with the plan. The mere fact that he invested $170,000.00 in a Canadian company that became totally insolvent does not qualify him as an entrepreneur. Since the bulk of his investment was eventually returned to him, he would not qualify as an investor either.
[8] The principal applicant submits that the Appeal Board failed to consider the substantial humanitarian or compassionate factors working in their favour. He claims that he outlined to the Appeal Board the reasons why he had to absent himself so long from Canada: his desire to arrange an exemption from military service for his son, his obligation to go back after the death of his wife's mother, the sudden death of his wife's younger brother, and also the fact that his own brother was suffering from cancer.
[9] The Appeal Board's discretion to grant relief in all the circumstances of the case is a wide one and the equitable relief available under subsection 70(1)(b) of the Act is a relief in the nature of an exception: it excepts a person who is the subject of a valid removal order from removal from Canada.
[10] There is a presumption that the evidence filed before a Board has been considered. The Appeal Board found that the principal applicant was still operating his textile business in Iran, and no particular business in Canada. "The principal appellant apparently continued to spend most of his time and energy with his textile company in Iran". The Appeal Board also noted that the close relatives of the principal applicant are residents of Iran. Consequently, it cannot be said that the Appeal Board made an unreasonable conclusion.
Disposition
[11] Consequently, this application for judicial review is dismissed.
[12] Counsel for the applicants has suggested the following question to be certified:
May the Immigration Appeal Division consider the failure to pursue an enterprise in the nature of that described in an application for permanent resident status by itself to be a breach of the condition of landing imposed under paragraph 23.1(a) of the Immigration Regulations, 1978 ?
[13] Although the decision of the Appeal Board is obviously very important to the applicants, I do not believe that the above question establishes a new principle of general importance.
OTTAWA, Ontario
September 26, 2001
Judge