IMM-1459-96
BETWEEN:
VIJAY KUMAR MEHTA
Applicant(s)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent.
REASONS FOR ORDER
SIMPSON, J.
Let the attached transcript of my Reasons for Order delivered orally from the Bench in Toronto, Ontario, the 20th day of December, 1996, now edited, be filed to comply with section 51 of the Federal Court Act.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
February 12, 1997
Action No. IMM-1459-96
FEDERAL COURT OF CANADA
(TRIAL DIVISION)
B E T W E E N :
VIJAY KUMAR MEHTA,
Applicant(s),
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
- - - - - - - - - -
Before The Honourable Madame Justice Simpson
Federal Court of Canada, Courtroom No. 7
330 University Avenue, Toronto, Ontario
Friday, December 20, 1996
- - - - - - - - - -
APPEARANCES:
Joseph Farkas, Esq. for the Applicant
Ms. Bridget O'Leary for the Respondent
- - - - - - - - - -
This is an application by Vijay Kumar Mehta (the "Applicant") for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision of a visa officer (the "Officer") at the Canadian Consulate General in Buffalo, New York. By letter dated March 25, 1996, the Officer refused the Applicant's application for permanent residence in Canada.
THE FACTS:
The Applicant is a citizen of India and was born on February 23, 1945. He is married and has two dependent children. He applied for permanent residence in Canada on or about April 13, 1995, in the category of "self-employed person". The Applicant's application for permanent residence discloses that, from 1973 to 1990, he was the owner of Pooch Kashmir Rubber Industry in India. From 1985 to 1990, he was also the managing director of Tushar Associates (Pvt) Limited in India; however, the evidence does not disclose the nature of this business. From 1991 to the present, the Applicant has been the owner of Vasotae International located in Jamaica, New York, and from 1993 to the present has also been the president of Orchid Trim Inc. and Acme Imports Inc. of New York, New York. These businesses import manufactured costume jewellery, and this is the business the Applicant intends to pursue in Canada.
In 1986, the Applicant entered Canada on a visitor's visa and claimed Convention refugee status. He later abandoned this claim and returned to India. He re-entered Canada on another visitor's visa and again applied for refugee status in 1990, but he failed to establish his claim. In 1991, he entered the United States and, in April of 1991, he applied for a work visa in that country. Since 1991, he has been operating the costume jewellery businesses described above.
The Applicant appeared for an interview with the Officer at the Canadian Consulate General in Buffalo on March 25, 1996. The Officer is no longer employed by the Respondent and did not provide an affidavit for these proceedings. Another visa officer, Nora Egan, swore an affidavit based on a review of the Officer's file and notes (the "Egan Affidavit"). The Applicant did not object to the Egan Affidavit until the hearing today.
At his interview, the Applicant admitted that he and his family entered the United States illegally in 1991. They did not have entry visas and the Applicant paid someone to assist him to elude examination by immigration officers at his port of entry into the United States. At the interview, the Officer discussed with the Applicant the latter's ability to establish a business in Canada. The Officer determined that the Applicant had "relatively limited transferrable assets", estimated at a value of approximately $100,000. The Applicant also claimed fixed assets in India with a value of approximately of $200,000, but the Applicant could provide no evidence of the value of these assets or of their transferability to Canada. The Applicant's costume jewellery businesses in the United States showed no net profit in 1994 and a $16,000 net profit in 1995.
The Officer concluded that the "marginal nature and limited profitability" of the Applicant's businesses in the United States indicated that his proposed business in Canada would not make a significant contribution to the economy within the meaning of "self-employed person" in the Immigration Regulations, 1978, SOR/78-172 (the "Regulations"). The Officer also determined that, because the Applicant's business was at a "small scale subsistence level" and the Applicant had limited transferrable capital, the Applicant could not establish or purchase a business in Canada to create an employment opportunity for himself and make a significant contribution to the economy or the cultural or artistic life in Canada.
For these reasons, the Officer refused to award the Applicant 30 units as a self-employed person and assessed him a total of 51 units. The Officer refused the Applicant's application for permanent residence by letter dated March 25, 1996. In that letter, the Officer stated that it was unlikely that the Applicant's proposed business would provide sufficient income to support a family of four and it was unlikely that it would make a significant contribution to the economy of Canada.
In a separate paragraph, the Officer also wrote that the Applicant, by entering the United States without a visa in 1991 and by eluding examination at a U.S. port of entry, violated American law and that, if he had committed these acts in Canada, he would have violated Canadian law. However, the Officer did not identify the United States' statutory provisions which the Applicant purportedly breached, and the Respondent has conceded that this constituted an error in law in the assessment of criminal inadmissability under Section 19(2)(a.1)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") (the "Error").
THE ISSUES
These facts raise the following issues:
| (1) Is the Egan Affidavit proper evidence? |
| (2) Is the Error fatal to the Officer's entire decision? |
| (3) If the Error is not fatal, did the Officer err in his assessment of the Applicant as a "self-employed person"? More particularly, did the Officer overlook relevant assets or work history and, secondly, did the Officer improperly consider the Applicant's illegal entry into the United States in his assessment of the Applicant? |
Issue One
The Egan Affidavit indicates that the Officer was available to provide information to Ms. Egan but was unwilling to swear an affidavit, as he was no longer an employee of the Respondent. In these circumstances, had the Applicant wished to pursue an issue with the Officer, he could have filed a motion seeking leave to compel his attendance for examination under Federal Court Rule 319(4). The fact that this step was not taken suggests that the Applicant has no serious quarrel with the Officer's notes or his refusal letter (Exhibits C and B to the Egan Affidavit). Most importantly, the Applicant took no issue with the Officer's recollection that the Applicant admitted that he entered the United States illegally. The Applicant in his affidavit sworn for these proceedings does not demonstrate that his entry was legal. In these circumstances, I am not inclined to seriously consider the Applicant's last-minute objection to the Egan Affidavit. The Egan Affidavit may stand, however, only insofar as it places Exhibits C and B before the Court and insofar as it provides the information found in paragraphs 1 to 9, 18, 20 and 21.
Issue Two
I am satisfied on the evidence before me that the Applicant admitted to the Officer during his interview that he entered the United States illegally and that this statement was true. The Error was the Officer's failure to include American statutory references for these offenses in his notes or decision letter. The Error did not change the important fact that the Applicant admitted entering the United States illegally. Accordingly, it cannot be said that the Error was so fundamental that the Officer's entire decision cannot stand.
Issue Three
I am satisfied that the Officer's analysis of the Applicant's application as a "self-employed person" was error-free. His conclusions about the Applicant's poor prospects in Canada were adequately supported by the evidence.
The Applicant suggested that his assessment as a "self-employed person" was improperly tainted by consideration of his criminal inadmissability. However, nothing in the Officer's notes or decision letter supports this submission. In both documents, the primary focus is the Applicant's insufficient assets and lack of business success. Moreover, in both documents, the Applicant's criminal inadmissability is treated as a separate and alternative matter.
The Supreme Court of Canada's decision in Chen1 was cited by the Applicant's counsel as authority for the proposition that the Officer had no jurisdiction to consider the Applicant's admitted illegal conduct. I cannot accept this submission. In my view, Chen must be restricted to its facts and applied only in cases where a discretion is exercised under section 11(3) of the Regulations against an Applicant who has otherwise satisfied the requirements for permanent residence status in Canada. In the case before me, the Applicant had not satisfied these requirements. Further, if I were to accept the Applicant's submission, the result would be that criminal inadmissability under section 19 of the Act could never be considered in the assessment of an applicant for permanent residence status. That would be absurd.
For all these reasons, the application for judicial review is dismissed.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: VIJAY KUMAR MEHTA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT NO.: IMM-1459-96
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 20, 1996
REASONS FOR ORDER: SIMPSON, J.
Delivered from the Bench on: December 20, 1996
DATED: February 12, 1997
APPEARANCES:
Mr. Joseph S. Farkas for Applicant
Ms. Bridget O'Leary for Respondent
SOLICITORS OF RECORD:
Joseph S. Farkas for Applicant
Barrister & Solicitor
North York, Ontario
George Thomson for Respondent
Deputy Attorney General
of Canada
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1 Chen v. Canada (MEI), [1995] 1 S.C.R. 725.