Date: 20021002
Docket: IMM-187-00
Neutral citation: 2001 FCT 1081
BETWEEN:
DALANGUERBAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicant seeks judicial review of a decision of the Visa Officer dated November 24, 1999 refusing the Applicant's application for permanent residence in the entrepreneur category.
[2] There are three issues:
1. Did the Visa Officer err in focusing his considerations on the business plan submitted by the Applicant?
2. Did the Visa Officer err in considering only one aspect of the definition of "entrepreneur", namely the Applicant's ability to establish a business as opposed to his ability to purchase or make a substantial investment in a business or commercial venture?
3. Did the Visa Officer err in finding that the Applicant had a five year plan with respect to trading in metals and chemicals?
Facts
[3] The Applicant applied on March 13, 1998 for permanent residence in Canada as an entrepreneur.
[4] The Immigration Regulations, 1978 define "entrepreneur" 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, and
(b) who intends and has the ability to provide active and on going participation in the management of the business or commercial venture;
[5] In a letter dated March 6, 1998 from his solicitor, she stated that the Applicant:
... is planning on setting up a trading company in Canada which he will trade metal and chemicals from Canada to China and Mongolia. These products are natural resources of Canada and he feels that he will do very well in his trading activities in Canada. He has a net worth of $1.1 million CAD. He is planning on visiting Canada prior to his interview in order to conduct research in the business environment in Toronto and Vancouver to see what his options are. However, it is anticipated he will establish a similar business in Canada at a cost of $150,000.00 CAD - $250,000.00 CAD.
[6] He filed audited financial statements which showed he earned over $100,000.00 up to an amount of over $800,000.00 during the three years 1996, 1997, 1998. The figures are confirmed by the Hong Kong income tax assessment.
[7] In his business application summary, under experience in business management he set out that he had been the interpreter/manager for the company, China Nonferrous Metal Industry's Foreign Engineering and Construction Corp. in Beijing, China since January, 1985. He further stated that in November, 1994 he incorporated his own trading company which traded chemicals and metal concentrate between Outer Mongolia and China. They established a manufacturing plant in Mongolia to manufacture knitted woollen materials. He stated:
I manage the whole business including sales and purchases. I supervise the staff of 4 employees and deal with the finances, shipping, budgeting and the overall operation of the business.
He further stated that he planned on setting up a trading company in Canada which would export metals and chemicals from Canada to China and Mongolia.
[8] The Applicant changed his plans as to what he intended to do in Canada when he brought along a preliminary business proposal to an interview on October 25, 1999. At that time he said his objective was:
To establish a factory in Canada to manufacture goat cashmere garments for ladies and accessories such as scarves, hats and gloves.
He pointed out that Outer Mongolia is the second largest goat cashmere producer in the world. He concluded his business proposal by adding a last paragraph stating:
I was originally thinking of exporting metals and chemicals from Canada to China and I may also pursue this business when I move to Canada.
[9] The Visa Officer during this interview made notes in which he talked about a three step process which he then set out in the CAIPs notes one day after the interview. However, there was a major addition to the interview notes with respect to the third step. The first step was to establish a business in Canada to qualify as an "entrepreneur" and he indicated that he thought it was viable and valid to invest in cashmere and manufacture the final product in cashmere. The second step would be to expand the business and the third step was five years down the road to get involved in the trade of nonferrous metals. There is no mention of a five year period in the original handwritten notes. The CAIPs notes are longer than the interview notes which is not surprising considering the Visa Officer was trying to write the notes as he did the interview.
[10] My view that the Visa Officer heard the Applicant talk about a five year plan for nonferrous metal is further supported by the Visa Officer's affidavit wherein he states at paragraph 17:
In a third step, when he is well accustomed to doing business in Canada 5 years down the road, he would like to be involved in the trade of nonferrous metals. Mr. Dalanguerban said 5 years was the time frame he expected it would take him to familiarize himself sufficiently with the Canadian mining industry.
[11] On November 24, 1999 the Visa Officer wrote the Applicant to inform him that he had been unable to meet the requirements for immigration to Canada in the entrepreneur category. He stated:
I have determined that you do not meet the definition of entrepreneur for the following reasons.
You could not show to my satisfaction that you have the ability to establish, purchase or make a substantial investment in a business or commercial venture in Canada that will create or continue an employment opportunity for at least one employee outside of yourself and your dependants. Specifically, I came to this conclusion after an evaluation of the information you provided on your project and taking into consideration that you have no direct experience in the manufacturing industry, you have never visited Canada and have limited knowledge of how to do business in Canada, you have done only a very summary study of the economic parameters of your project and you have not done a market research for the products you intend to manufacture in Canada.
Analysis
[12] The Applicant submits that the Visa Officer erred in law by focusing on the proposed plan in the letter and in his notes. The Applicant submits that the Visa Officer contradicted himself in his affidavit when he stated at paragraph 30:
I do not remember asking Mr. Dalanguerban if he could purchase or make a substantial investment in a business and I do not remember that he talked about it. I remember however that I considered it when making my decision, as indicated in my refusal letter. It was my opinion that, with a private net worth of over $1,000,000.00 Mr. Dalanguerban could purchase or make an [sic] substantial investment in a business. My concern was that he did not show to my satisfaction that he had the ability to be actively involved in the management of the business or venture and create and maintain at least one employment opportunity.
[13] In the original refusal letter, the Visa Officer based his decision on the lack of ability to establish a business which comes under the (a) part of the definition of "entrepreneur". The Visa Officer made no mention of the (b) part. However, since the Visa Officer decided that the Applicant did not meet the requirements of the (a) part, it was not necessary to proceed to the (b) part and I do not see any contradiction in the Visa Officer stating that he did not meet the managerial experience requirement of (b) in respect of a part of (a) in which he was just commenting on two other parts of the definition in passing. The Visa Officer never did say that the Applicant met the managerial requirements of (b).
[14] The Applicant submits that the Immigration Manual, Chapter OP6, "Processing Entrepreneurs and Self Employed Immigrants" states, "You should actively discourage the submission of a formal business plan". However, the Applicant only submitted a three page preliminary business proposal and I do not see that as violating the Immigration Manual process. The guidelines certainly indicate that "... prior business experience may be extremely useful in making the determination" as to whether an entrepreneur has the ability to successfully establish a business in Canada. The Visa Officer can certainly look at other documents besides the required ones.
[15] While I accept that the entrepreneurial visa provides for a two year period to set up a business in Canada, it is not unreasonable for a visa officer to probe into the plans of an Applicant. In this case, the Visa Officer found that the Applicant's proposals were "vague, general and did not involve any real plan". He further stated that the Applicant's success in trading metals was primarily because of his knowledge of Mongolia and his contacts in the industry. The Applicant had not satisfied the Visa Officer that he could learn quickly how to do business in a new environment where he did not speak the language and outside of the industrial context to which he was accustomed. Furthermore, the Visa Officer had asked the Applicant if he has ever managed a manufacturing business and his answer was that he had no direct experience. Although I might have reached a different conclusion from the Visa Officer on whether the Applicant could establish himself in a business or commercial venture in Canada, it was open to the Visa Officer on the evidence to come to the negative conclusion that he did.
[16] The Applicant also submitted that the Visa Officer had a duty to assess the Applicant's ability to purchase or make a substantial investment in a business once he found the Applicant did not have the ability to establish a business. As I stated earlier, although the Visa Officer did not discuss this in his reasons for decision in his affidavit, he did so in a limited way in paragraph 30. However, there is no obligation on a visa officer to go on and assess the Applicant's ability to purchase or make a substantial investment in a business. Décary J. stated in Bakhshaee v.Canada (Minister of Citizenship and Immigration), (1998) 154 F.T.R. 158:
It is not fairness, but the Regulations that impose a duty on a visa officer to determine whether the conditions of the definition are met. Under part (a) of the definition, an applicant has the option of seeking admission as "entrepreneur" on the basis of his intention and ability "to establish, purchase or make a substantial investment in a business or commercial venture in Canada". An applicant may well decide to base his application and submit evidence with regard to only one of the three options, in which case a visa officer need not, of course, examine the other options. In the case at bar, the applicant limited himself to allegations and evidence pertaining to the establishment of a business. The visa officer cannot be faulted for not having examined the other options, with respect to which there was simply no evidence.
In my view, these words are equally applicable in the case before me. They have also been applied by Lutfy A.C.J. in Majeed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 742 (T.D.) (QL) and inDhamee v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 109 (T.D.) (QL).
[17] The Visa Officer did not err in failing to consider whether the Applicant could "purchase or make a substantial investment in a business or commercial venture in Canada" within the meaning of the definition.
[18] I have already stated that in my view the Visa Officer's affidavit and CAIPs notes both indicated that there was a five year period before the Applicant was going to start his trading business in metals. This finding of fact was reasonable and clearly in the Visa Officer's jurisdiction. Accordingly, there is no error by the Visa Officer in this finding of fact.
[19] Although the Applicant is a very successful business person, the Visa Officer's decision was not unreasonable. He did not err in applying the definition of entrepreneur nor did he make any other perverse findings.
ORDER
The application for judicial review is dismissed.
"W.P" McKeown"
JUDGE
OTTAWA, ONTARIO
October 2, 2001