Court File No. IMM-4842-96
BETWEEN:
AZIZ FAKHRUDDIN PANCHA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON, J.
Let the attached transcript of my Reasons for Order delivered orally by telephone on Thursday, the 6th day of November, 1997, now edited, be filed to comply with section 51 of the Federal Court Act.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
December 1, 1997
Court File No. IMM-4842-96
IN THE FEDERAL COURT OF CANADA
(TRIAL DIVISION)
BETWEEN:
AZIZ FAKHRUDDIN PANCHA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered orally by telephone on
Thursday, November 6, 1997)
TELECONFERENCE PARTICIPANTS
Irvin M. Sherman, Esq. for the Applicant
Godwin Friday, Esq. for the Respondent
Jeff Weir, Registrar for the Judicial Review
Division of the Federal
Court of Canada
REASONS FOR JUDGMENT
This is an application by Aziz Fakhruddin Pancha (the "Applicant") for judicial review of a decision by a visa officer in Damascus, Syria, dated October 24, 1996 (the "Decision").
In the Decision, which followed an interview on October 3, 1996 (the "Current Interview") the visa officer informed the Applicant that his application (the "Current Application") did not meet the definition of "investor" in Section 2(1) of the Immigration Regulations, 1978, in that he had not successfully operated, controlled or directed a business or commercial undertaking.
The Applicant is a physician who was granted a Master of Surgery degree in orthopaedics in Bombay in 1980. Thereafter, he taught at the medical college and became an assistant professor. It appears that teaching occupied the Applicant for several hours each day until 1983 or 1985.
This is not the Applicant's first application to come to Canada. In March of 1995, he was interviewed in Rome (the "Prior Interview") in what, for the Applicant, turned out to be an unsuccessful application in the "entrepreneur" category (the "Prior Application").
In the Current Application, the Applicant presented five examples of his operation, control or direction of a business. The visa officer concluded that the evidence was insufficient in each case, and I will deal with each in turn.
| i) Maharajah Ice Cream Company |
This company was not mentioned in the Current Application or in the Prior Interview. Its existence only came to light for the first time during the Current Interview. At this interview, the Applicant stated that his employment with the company was in 1978 and 1979. He told the visa officer that his brother's father-in-law was the general manager of the company. This is corroborated by a company document which indicates that there was one general manager and three managers. The Applicant submitted that he was only required to work three to four hours per day, and that he sold his 25 per cent shareholding in 1984. The other partners were his brother, his brother's wife and his brother's father-in-law.
The Applicant procured raw materials and was responsible for quality control and hygienic standards. He denies telling the visa officer that his brother's father-in-law was the general manager of the company.
| ii) Mehta Coal Company |
This company was not mentioned in the Prior Interview. It first appeared in the Current Application. From 1979 to the present, the Applicant has been a 22 per cent "partner" in Mehta Coal Company. The other partners in this company are the Applicant's elder brother, his sister and a silent partner. The Applicant stated that he worked mostly outside the office procuring orders from local clients and preparing cost estimates. He also indicated that his sister was the supervisor for twelve other staff members, while his brother purchased the coal and did the bidding. The Applicant further advised the visa officer that he worked in this business in the afternoons after finishing his teaching duties.
iii) SH Pitkar Ortho Tools Company
From 1981 to 1984, the Applicant was responsible for the assessment of market demand, for the installation and monitoring of quality control procedures for manufacture, and for conducting sales promotions seminars. He apparently supervised four staff members.
iv) Weight Reduction Clinic in Saudi Arabia
From 1986 to 1989, the Applicant was a "manager" and "consultant" at Dr. Toosy's Polyclinic, a weight reduction clinic in Saudi Arabia. The Applicant indicated that he planned, set up and ran this state-of-the-art clinic with a staff of eighteen, including four doctors, under his direct supervision. As a non-Saudi, the Applicant could not own a business and so needed a Saudi sponsor. However, the Applicant was unable to provide any credible documentation confirming that he managed the clinic for its owner, Dr. Toosy. Unfortunately, his personal letter of reference from Dr. Toosy was dated one year after Dr. Toosy's death.
v) Dabbagh Group of Holdings
From 1989 to 1994, the Applicant stated that he was a technical advisor to the medical division of this Saudi Arabian company. Then, from 1994 to 1996, he was in overall charge of the medical division which produces and markets orthopaedic applicances, orthotics, prosthetics, and other instruments for the disabled. The visa officer accepted that the Applicant worked for the Dabbagh Group Holding Company, but only as a consultant.
DISCUSSION
I have concluded that the visa officer's decision was supported by the evidence. Operation, control and direction are disjunctive terms in section 2(1) of the Immigration Regulations, and the visa officer considered each possibility. She noted the Applicant's shareholdings, where appropriate, although it was clear that control was not at issue. The Applicant never indicated that his shareholdings gave him control of any of the businesses. The Applicant submitted that the visa officer erred in law when she imposed a requirement for ownership of a business on the Applicant. She said, in this regard, in her computer notes that:
| "Applicant has never successfully operated his own business, therefore does not qualify as an investor as per definition." |
(my emphasis)
However, in my view, it is clear from reading her notes as a whole that she assessed the application correctly and knew that the terms in the definition of investor were disjunctive, and that ownership was not a requirement. Further, despite the language in her notes, she did not, in fact, impose an ownership requirement. Had she done so, there would have been no need for further assessment of the Applicant's Current Application as he did not claim to have owned any of the businesses.
The visa officer's notes also contain the following statement:
| "In my opinion applicant does not qualify as investor as he has never actually controlled/directed a business." |
The Applicant submits that she erred in law by not distinguishing between ownership and direction. However, I do not agree. I think the slash in the text indicates a recognition of two separate criteria.
Finally, the Applicant states that the visa officer erred in failing to have regard for the evidence which, he submits, indicates that he directed a business or a division thereof.
Again, I cannot agree. In the two family companies and in the Pitkar Ortho Tools company, the Applicant functioned as an employee with duties related to particular facets of each business. He was not given comprehensive responsibility for all aspects of the businesses.
In the case of Dr. Toosy's clinic, the evidence that the Applicant ran the clinic is not credible. Presumably, if he supervised a staff of eighteen, someone from that group could have provided evidence that the Applicant was his or her manager.
Finally, for the Dabbagh Group, the evidence is inconclusive. The letter from Mr. Kazi of March 29, 1996, can fairly be read to indicate that the Applicant served only as a technical advisor or consultant to the company's medical equipment division.
CONCLUSION
It may well be that the Applicant operated or directed one of these businesses. However, there was insufficient credible and clear evidence before the visa officer to establish that fact.
In my view, the Decision was error-free and the application has been dismissed.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: AZIZ FAKHRUDDIN PANCHA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT NO.: IMM-4842-96
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 31, 1997
REASONS FOR ORDER: SIMPSON, J.
Delivered orally by telephone on: November 6, 1997
DATED: December 1, 1997
APPEARANCES:
Mr. Irvin M. Sherman for Applicant
Mr. Godwin Friday for Respondent
SOLICITORS OF RECORD:
Rekai & Johnson for Applicant
Toronto, Ontario
George Thomson for Respondent
Deputy Attorney General
of Canada