Date: 20001207
Docket: IMM-4912-99
Ottawa, Ontario, December 7, 2000
Before: Pinard J.
Between:
ATTA MUHAMMAD KHAN
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review of the decision by the visa officer Neil Alexander of the Canadian High Commission in Singapore on August 24, 2000, dismissing the application by the plaintiff for permanent residence in the "entrepreneur" class, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20001207
Docket: IMM-4912-99
Between:
ATTA MUHAMMAD KHAN
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review from a decision by the visa officer Neil Alexander (hereinafter "the visa officer") of the Canadian High Commission in Singapore on August 24, 2000, dismissing the application filed by the plaintiff for permanent residence in the "entrepreneur"class.
[2] Section 2(1) of the Immigration Regulations, 1978, SOR/83-837, defines "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 . . . |
"entrepreneur" désigne un immigrant a) qui a l'intention et qui est en mesure d'établir ou d'acheter au Canada une entreprise ou un commerce, ou d'y investir une somme importante, de façon à contribuer de manière significative à la vie économique et à permettre à au moins un citoyen canadien ou résident permanent, à part l'entrepreneur et les personnes à sa charge, d'obtenir ou de conserver un emploi, et b) qui a l'intention et est en mesure de participer activement et régulièrement à la gestion de cette entreprise ou de ce commerce . . . |
[3] It is worth reproducing here the following passage from the visa officer's decision:
You do not meet this definition of entrepreneur because although you may have the intention to provide active and ongoing participation in an entrepreneurial enterprise in Canada, the information provided in your application and discussed at interview, you have not demonstrated that you have this ability. This conclusion was reached in discussing your duties and responsibilities in both your current and past positions, conclusively determining that your background and expertise are insufficient to satisfy me that you have the ability to establish and manage a business in Canada that would be of significant economic benefit.
Although I believe you have had a successful career in Pakistan in the construction business, and you are well educated and speak English fluently, you were unable to convince me at interview that you have the intention and the ability to establish a business in Canada, or more specifically in Halifax, Nova Scotia, your intended destination in Canada.
You told me that you were planning to immigrate to Canada for the past 15 years, and have just got around to the decision in 1998. I asked when you visited Canada in the past and you advised me you never visited Canada. I was surprised by this as you had just told me how wonderful Canada is and that you "must" go to Canada for the education of your children.
I asked you several specific questions about your business plan for Canada. You told me you want to establish a property development company in Halifax. You specifically choose Halifax because it is a small city and the economic development office there answered your query in six days. However, when I asked about specifics regarding your business plan you were unable to answer any of my questions. A sample of which follows: Who are the competitors you will face in the local property development business? How much does it cost to build a home in Halifax? What about cold weather construction techniques? How will you raise capital to finance a property development business?
I asked you why you did not take the opportunity to visit Canada after your application submission to do an exploratory visit to Halifax to see if your plan had merit. You advised me you were too busy at work. I responded by saying you had just told me earlier that your company in Lahore was experiencing a prolonged slowdown. Your reply was that this was precisely why you had to be available there, although I was not convinced of the logic of this argument.
[4] In Chiu Chee To v. Minister of Citizenship and Immigration (May 22, 1996), A-172-93, the Federal Court of Appeal recognized that the proper standard of judicial review in such decisions made by visa officers is the same as that set out by the Supreme Court of Canada in Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, where McIntyre J. wrote at 7 and 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.
[5] Applying these rules to the facts in evidence in the case at bar, I am not persuaded, in view of the high level of restraint that is necessary, that the visa officer made an error justifying this Court's intervention. An exploratory visit, although not required, may constitute a relevant factor. Moreover, this is how the visa officer in the case at bar considered the absence of such a visit, in addition to taking into account various other factors which were also relevant. As it is clear from the visa officer's letter of refusal that he considered the actual issue and that his assessment of the facts was based on the evidence, his decision should not be altered.
[6] The application for judicial review is accordingly dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
December 7, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-4912-99
STYLE OF CAUSE: Atta Muhammad Khan
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 26, 2000
REASONS FOR ORDER BY: PINARD J.
DATED: December 7, 2000
APPEARANCES:
Denis Buron PLAINTIFF
Marie-Claude Demers DEFENDANT
SOLICITORS OF RECORD:
Denis Buron PLAINTIFF
Montréal, Quebec
Morris Rosenberg DEFENDANT
Deputy Attorney General of Canada