Date: 20011211
Docket: IMM-2292-00
Neutral citation: 2001 FCT 1357
Between:
NAWAB SINGH HEER
Applicant,
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER AND ORDER
KELEN J.:
[1] This is an application pursuant to section 18.1 of the Federal Court Act, RSC 1985, c. F-7, for judicial review of the decision of Antoinette Taddeo, a visa officer at the Canadian Consulate General in Buffalo, New York dated March 29, 2000, refusing the applicant's application for permanent residence as an "entrepreneur".
FACTS
[2] In 1998, the applicant, then a 48 year-old colonel with the Indian Army, applied for an immigrant visa as an "entrepreneur" for assessment in accordance with subsection 9(1)(b)(i) of the Immigration Act, R.S.C. 1985, c I-2, (the "Act"). The Act provides that a visa officer may issue an immigrant visa to an "entrepreneur".
[3] An entrepreneur is defined in section 2(1) of the Immigration Regulations, 1978 SOR/78-172, as amended (the "Regulations") 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, or
(b) who intends and has the ability to provide active and on-going participation in the management of the business or commercial venture;
[4] To qualify as an entrepreneur, the onus is on the applicant to demonstrate that he meets the requirement of the definition in the Regulations.
EXPERIENCE AND ABILITIES
[5] The applicant contended that his 20-year military experience in India demonstrates that he has the ability to establish and manage a business or commercial venture which will make a significant contribution to the economy and which will create employment in Canada. As a colonel, the applicant has 1,200 men working under his command and he is responsible for the management of an annual budget of approximately CAN$1.3 million.
BUSINESS PLAN
[6] The "business plan" presented by the applicant with his visa application was for:
an import firm/tourist agency/gas station or buy one of the franchises after studying the economy and market in Canada.
However, at the interview with the visa officer in Buffalo on March 17, 2000, approximately two years after the application, the applicant stated that his business plan was to "establish a leasing trucking firm, or a chicken restaurant franchise or an import/export business". The applicant states in his Affidavit filed in this proceeding:
I was advised that these types of ventures can be lucrative and they would not require a significant amount of private sector experience.
RESEARCH
[7] When questioned about the research conducted by the applicant with respect to establishing himself as an entrepreneur in Canada, he cited three trips to Canada where he spoke with relatives and friends. He did produce, a few weeks before the interview in Buffalo, letters from two companies (a trucking company and a chicken restaurant franchisee) expressing appreciation for his interest. Overall, there was minimal evidence that he conducted research into a Canadian business venture.
NET WORTH
[8] With respect to evidence of net worth, the applicant produced documents which the visa officer did not accept as credible. The net worth evidence consisted of a list of five properties in India with values prepared by a "registered valuer and chartered engineer" and dated three weeks prior to the interview in Buffalo, and two Canadian bank books, showing new accounts in the name of the applicant established a few weeks before the interview. When questioned about the source of this money, the applicant stated that it came from his brother in Canada in exchange for property which he gave to his brother.
[9] The evidence of net worth was vague. It was not clear, concrete, or comprehensive. An applicant must discharge his burden of proof by satisfying the visa officer that the applicant has adequate net worth to make a "substantial investment" in a business or commercial venture in Canada.
THE VISA OFFICER'S DECISION
[10] The decision of the visa officer stated:
After a careful and thorough review of your application and the information you provided at your personal interview, I have determined that you are not an entrepreneur as defined by these Regulations. Following your interview at this office on March 17, 2000, you failed to demonstrate to me that you have the ability to make a substantial investment in a company in Canada and that you have the ability to provide active and on-going participation in the management of the business or commercial venture.
[...]
You were not able to satisfy me you [sic] possess the ability to establish a successful business venture in Canada that will create employment opportunities for Canadian citizens or permanent residents and one that will make a significant contribution to the Canadian economy or that you would be active in the management of the company. Therefore, I have refused your application for permanent residence to Canada pursuant to s. 19(2)(d) of the Canada Immigration Act, in that you have been determined to be unable to "fulfill or comply with" the provisions of this Act or Regulations.
STANDARD OF REVIEW
[11] Teitelbaum J. in Liu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1125, 2001 FCT 751:
The appropriate standard of review for this type of decision - a discretionary one by a visa officer - is the same as that enunciated by McIntyre J. in the Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7 - 8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
In Wang v. Canada (M.C.I.),[2001] F.C.J. No. 95 (IMM-2813-00, January 25, 2001), Rouleau J., referring to the above cited passage as well as to the Supreme Court of Canada's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, held that the appropriate standard of review should be reasonableness simpliciter [emphasis added].
Accordingly the standard of review in this case is reasonableness simpliciter.
ANALYSIS
[12] The visa officer has the discretion and expertise to consider applications for permanent residence. Upon reviewing the evidence, it is clear that the findings of fact by the visa officer were not made in a perverse or capricious manner or without regard for the material before the officer. It was not unreasonable for the visa officer to find that the applicant is not an "entrepreneur" within the meaning of the term. It was not unreasonable for the visa officer to conclude that 20 years of experience in the army does not translate, in this case, to an ability to establish a business or commercial venture in Canada or provide active and on-going participation in the management of that business or commercial venture. The fact that the applicant had 1,200 persons under his command does not necessarily mean that he will have the ability to be an entrepreneur. In fact the skill sets may be quite different, and it was not unreasonable for the visa officer to come to the conclusion that the military experience did not qualify the applicant as an "entrepreneur".
[13] To qualify as an entrepreneur requires more than net worth. The applicant failed to satisfy the visa officer that he has a talent or ability to be an entrepreneur either in his approach to the application, his business plan or his background. The definition of entrepreneur does not close the door to an applicant who lacks a track-record as an entrepreneur in their country of origin. The definition, however, does require that the applicant have an "ability" to be an entrepreneur as defined in the Act. The applicant has not satisfied the visa officer that he has that "ability" to be an entrepreneur. This finding was reasonably open to the visa officer. Experience in the army does not necessarily demonstrate an "ability" to run a business for profit. Managing a part of the army is managing an institution with a public purpose and a public purse. Profit is not criteria for running a public institution and it was open to the visa officer to decide that the applicant did not meet the definition of "entrepreneur". Accordingly, the decision is reasonable and fair in this regard.
BUSINESS PLAN AND RESEARCH WAS VAGUE
[14] The applicant, in providing a business plan, identified five different prospective businesses. It was not unreasonable of the visa officer to find that the business plan was uncertain and vague.
[15] The visa officer did not accept the applicant's business plan or research as acceptable. In Bakhshaee v. Canada ( Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 196, [1998] F.C.J. No. 1002 (F.C.T.D.), Décary J.A. (sitting as an ex officio Judge for the Trial Division) considered a similar application for permanent residence as an entrepreneur. In that case, the visa officer found that the applicant's business plan was vague. The Court upheld this decision, and held at paragraph 5:
The visa officer has explained that at the interview the applicant was vague with respect to his proposed business and its viability. The applicant did not know whether he would face competition, had no idea of current rents or salaries in Canada, had done no research into potential customers, would wait until he was admitted to Canada before investigating what the country needs and had done little, if any, research into the feasibility of establishing his proposed business.
In the case at bar, the applicant has similarly provided a vague business plan. He initially proposed a number of businesses in his application, and at the interview two years later, revised the business plan and identified other business.
[16] Décary J.A. continued at paragraph 6:
These factors, as noted by Simpson J. in Chiu v. Canada (Minister of Citizenship and Immigration) (1996) 121 F.T.R. 39, are very much relevant to the inquiry made by a visa officer. As my colleague writes at page 42:
the language of the definition makes it clear that potential viability is an essential characteristic of the applicant's proposals. No officer can be obliged to decide whether a business can make an economic contribution and employ people unless, of necessity, the officer also concludes that the business has a realistic chance of success.
[17] Similarly, in the case at bar, the visa officer cannot decide whether the applicant's business plan can make an economic contribution and employ people in Canada when the applicant has presented a vague business plan based on little or no research. Accordingly, the visa officer acted reasonably in dismissing the applicant's business plan as one which would qualify him for entry into Canada as an "entrepreneur".
[18] It was not unreasonable of the visa officer to find that the applicant's documentation regarding net worth did not satisfy, on the balance of probabilities, that the applicant owned specific properties and that these properties had a current value of approximately 16.4 million Rupees. Proper documentation to substantiate such net worth, whether in Canada or India, requires more than a single page "valuation report" signed by a "registered valuer and chartered engineer". Moreover, in addition to the value of the properties shown on this single page, there ought to be evidence regarding ownership.
DUTY TO ACT FAIRLY
[19] While the duty to act fairly requires that the applicant be given the opportunity to address any prejudicial information relevant to their case, this duty to act fairly does not relieve the applicant from the onus to satisfy the visa officer that the applicant has met the requirements set out in the Act and Regulations. The visa officer is under no duty to request that better further evidence be produced; Shaikh v. Canada (1998), 156 F.T.R. 136 (F.C.T.D.) at 140.
[20] Mr. Justice Muldoon in Asghar v.Canada (Minister of Citizenship and Immigration), [1997] F.C.J. 1091 (F.C.T.D.) held at paragraph19 that:
In Wai v. M.C.I., IMM-3418-95, 24 October, 1996, [1996] F.C.J. No. 1387, Heald D.J. held that there is no duty on the visa officer to request more evidence when he is not persuaded by the evidence already adduced that the applicant had "Arranged Employment". He stated:
In my view, these grounds are without merit. It is the responsibility of the applicant to provide any and all relevant information in support of his application. There is no onus upon the visa officer in this regard. Similarly, the onus is upon the applicant to submit in evidence a valid offer of employment.
and at paragraph 21:
The visa officer's task is precisely to weigh the evidence submitted by the applicant. In the Court's words, in light of the onus that is on the applicant to produce evidence, it is not apparent that the visa officer should be compelled to give him a "running-score" at every step of the proceeding [Covrig v. M.C.I., (1995), 104 F.T.R. 41].
When questioned about the bank accounts, the applicant did not satisfy the concerns expressed by the visa officer as to the beneficial owner of the funds in the two recently-opened accounts. The applicant stated that his brother gave him the money in return for some land. This is vague and a convenient explanation. Details and documents were not available to substantiate the applicant's ownership of the funds.
[21] The applicant had full knowledge that he had to provide proof of net worth and satisfy the visa officer. The evidence submitted was deficient, insufficient and not accepted as credible by the visa officer. The visa officer is not obliged to provide the applicant with a preliminary finding in this regard and provide the applicant with another opportunity to present more extensive evidence. Unlike the Muliadi case, the visa officer was not relying on some extrinsic evidence to the detriment of the applicant without providing the applicant with an opportunity of responding. The applicant was well aware that net worth evidence needed to be presented in order to satisfy his onus of proof under the Immigration Act and Regulations.
[22] The failure by the applicant to provide adequate, sufficient or credible proof with respect to net worth (his property in India and his bank accounts in Canada) does not trigger a duty to inform the applicant in order for the applicant to submit further proof to address the finding of the visa officer with respect to the inadequacy, deficiency or lack of credibility. Section 8(1) of the Act imposes the burden on the immigrant to show that his admission to Canada is not contrary to the Act or the Regulations. It reads as follows:
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
[23] Paragraph 19(2)(d) of the Act provides that an immigrant will not be admitted to Canada if the said immigrant cannot fulfill or comply with the conditions or requirements of the Act. Section 2 of the Regulations defines "entrepreneur" as noted above. Section 8 of the Regulations provides that a visa officer must assess an entrepreneur on the basis of factors set out in Column I of schedule I to the Regulations, other than the factors set out in items 4 and 5 thereof.
[24] In this case, the applicant has legal onus of proof to satisfy the visa officer that the applicant is an "entrepreneur".
[25] The applicant had adequate notice that evidence of net worth was required. He was questioned by the visa officer on his evidence of net worth and failed to satisfy his burden of proof. Accordingly I do not accept the applicant's contention that he was not treated fairly and that the decision ought to be set aside so that he can present better evidence of net worth.
[26] The most recent Federal Court decision with respect to the duty of fairness in this regard, is the decision of Mr. Justice Rouleau dated November 2, 2001, Rong Xu v. Minister of Citizenship and Immigration, 2001 FCT 1189, [2001] F.C.J. No. 1613. At paragraph 15 Rouleau J. held:
I am not convinced that there was a breach of the duty of fairness simply because the Visa officer did not communicate her concerns to the applicant. There is no obligation or duty on the part of the Visa Officer to put before an applicant her concerns. The decision is clear; there was no reliance on extrinsic evidence and the officer's decision relying on the facts put to her was reasonably open to her in the circumstances.
[27] Similarly, in Ali v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1, [1998] F.C.J. No. 468 (F.C.T.D.), Teitelbaum J. held at paragraphs 19 and 20:
[para 19] It appears that the duty to apprise the applicant of the visa officer's concerns is limited. Given that the applicant must establish that he has met certain criteria to enter Canada, the applicant should assume that the visa officer's concerns will arise directly from the Act or the Regulations. [...] What it does mean is if, for example, an applicant for a visitor's visa has provided weak evidence supporting his position that he has sufficient ties to his home country to ensure his return, then the visa officer does not have to apprise the applicant of this concern. Such a concern arises directly from the Act and the Regulations. It may be preferable if the visa officer would inform the applicant of this concern but failure to do so does not violate the duty of fairness.
[para 20] On the other hand, the prime example of when a visa officer should inform the applicant of his concerns is when the visa officer has obtained extrinsic evidence. In that situation, the applicant should have the opportunity to disabuse the officer of any concerns that may arise from that evidence.
[28] In the case at bar, the visa officer did question the ownership of the Canadian bank accounts, the source of the funds in those accounts, and the applicant's net worth in India. The applicant's responses did not satisfy the visa officer or disabuse the visa officer of her credibility concerns.
CONCLUSION
[29] The visa officer acted reasonably in deciding that the applicant did not satisfy the onus of establishing that he was an entrepreneur as defined in the Act for the followings reasons:
1. The applicant had no clear business plan.
2. The applicant had no clear evidence substantiating his net worth,
3. The applicant had no clear evidence of an ability to establish a business for profit in Canada.
4. There was no clear evidence that the applicant is or meets the definition of an entrepreneur.
5. There was no clear evidence that the applicant had conducted the type of business research required by an entrepreneur before he decides upon a viable business plan.
6. There was no clear evidence that the applicant's 20-year experience in the Indian Army is relevant to his ability to establish or manage a business for profit in Canada.
Accordingly the immigration officer acted reasonably, with regard to the material before her and the evidence, and not in a perverse or capricious manner. The immigration officer made no error of law and acted within her jurisdiction in deciding that the applicant was not an entrepreneur.
ORDER
[16] For these reasons this application is dismissed.
"Michael A. Kelen"
Judge
OTTAWA, ONTARIO
DECEMBER 11, 2001