IMM-2255-96
B E T W E E N:
KULBHUSHAN KUMAR KAURA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HEALD, D.J.:
This is an application for judicial review of a decision by visa officer N. Brunet, dated May 15th, 1996. By that decision the applicant's application for permanent residence was refused.
FACTS
In August of 1995, the applicant submitted an application for permanent residence in Canada to the visa officer in New Delhi. In that application, the applicant stated his intended occupation in Canada as being a "Tool and Die Maker - Self-Employed." It was represented that he had approximately 25 years of experience in that occupation as well as an approximate net worth of $167,000.00 (which included an investment of $102,000.00 in Canadian Treasury Bills). Upon arrival in Canada, it was the applicant's intention to establish a small tool and die making factory with an initial investment of $50,000.00.
During a preliminary assessment of this application, visa officer, Ms. St. Louis observed that the applicant had been refused a visitor's visa to Canada in 1988. At that time he had indicated that he was a middleman in his business and that his annual income was only $3,000.00. The estimate of visa officer, St. Louis was that in order for him to have acquired the substantial assets which he claimed in his 1995 application supra, he would have had to save his entire earnings for 34 years. The visa officer also had doubts as to whether his proposed business would be of substantial artistic or economic benefit to Canada as mandated by the Immigration Regulations, 1978. Accordingly, it was decided that a personal interview with the applicant was desirable.
The applicant was interviewed at the office of the Canadian High Commission in New Delhi on March 26, 1996. His answers concerning the nature of his business were vague. The visa officer concluded that rather than being a manufacturer of parts as stated on his application, he was a retailer. The visa officer did not believe his statement that he had been designing and manufacturing tools and dies since 1975. The statement was not supported by documentation of any kind. He stated that his parents and his in-laws had provided the money with which to purchase the Treasury Bills. That money had not been earned through his business. The visa officer noted that the applicant did not have any definite plan for the commencement of business in Canada nor did he have any knowledge of modern manufacturing methods or the business environment in Canada. In concluding the interview, the visa officer informed the applicant that she had serious concerns about his potential for successfully establishing his own business in this country.
On June 3, 1996, the applicant was advised by letter, that his application had been assessed under the Independent category as a Tool and Die Maker. He was further advised that on this basis, he did not meet the requirements for immigration to Canada. Under the Independent category, he had only received 64 of the 70 points necessary to qualify for immigration to Canada. There was no indication in the letter that the applicant was ever considered or assessed under the Self-employed category (the category under which he had applied).
In her affidavit the visa officer deposed that she did not award the applicant the 30 units usually awarded to self-employed persons because, as noted supra, she was not persuaded that he could become established as a self-employed person. She then assessed him under the independent and assisted relative categories. She noted that although the refusal letter refers only to the Independent category, the applicant was also assessed under the self-employed category.
ISSUES
1. Was procedural fairness afforded the applicant in the circumstances of this case?
2. Does the visa officer's decision to refuse the applicant's application under the category of "Independent" instead of under the category of "Self-employed" constitute reviewable error?
| 3. Did the visa officer err in assessing the applicant's ability to become successfully established as a self-employed person in Canada? |
ANALYSIS
While the refusal letter stated that the applicant had been assessed as an "independent" immigrant, it is apparent from the visa officer's affidavit that the applicant was also assessed as a "self-employed immigrant."
However, the visa officer was not persuaded that the applicant could become successfully established in his occupation or business in Canada. She advised the applicant of her concerns and of her reasons therefor: the size of his current business; the focus on buying and selling; the lack of a manufacturer's licence; the lack of upgrading after 30 years in the business; his lack of knowledge of the business environment and of modern technical requirements. The visa officer had the further view that the applicant's business appeared to be disorganized. She also informed him that, in her view, he had not successfully managed a similar type of business, he had not demonstrated that his skills were readily transferable to Canada, and he lacked initiative and motivation in pursuing his plan to establish himself as a self-employed person in Canada. She also advised him that she was not satisfied that there would be a significant contribution to the economy, cultural or artistic life in Canada from his proposed business.
The duty of fairness requires that the applicant be afforded the opportunity to answer the visa officer's concerns expressed during the interview.1 The only evidence as to the applicant's response to these concerns is to be found in the visa officer's affidavit wherein she deposed: the applicant did not present himself favourably at the interview; he seemed unprepared; and, the applicant answered the visa officer's questions in a vague, casual and indifferent manner. The applicant's lawyer provided the visa officer with confirmation of the quantum of the applicant's investment in Treasury Bills. He also furnished profit and loss statements from the applicant's business. This added material did not alter the visa officer's conclusion. Because of her view that the applicant would be unable to establish a successful business in Canada, the visa officer quite properly declined to award the applicant the 30 bonus points to be allowed in the Self-employed category. I also conclude that the visa officer did not breach the duty of fairness since she afforded the applicant the opportunity to respond to her concerns during the interview. She also allowed further representations after the interview which she duly considered.
In my view, the applicable legislative provisions vest a broad discretion in the visa officer which includes the responsibility for weighing the evidence before her. The visa officer was not satisfied on the totality of the evidence before her that the applicant could successfully establish himself in Canada as a self-employed person. In my view, such a conclusion was reasonably open to her on this record. Accordingly I find that reviewable error has not been shown.
CERTIFICATION
Counsel for the applicant suggested that the following question be certified as a serious question of general importance pursuant to the provisions of Section 83 of the Immigration Act:
| "Does a visa officer in his/her refusal letter, have a duty to specifically address the category or occupation under which a person applies." |
Counsel for the respondent objects to this certification. I agree with the respondent's counsel. Such a question must be one which, in the judge's opinion, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application2. In my view, the question here being asked is a fact specific question with particular reference to the circumstances of this case and does not "contemplate issues of broad significance." The request for certification is therefore declined.
CONCLUSION
The within application for judicial review is dismissed.
"Darrel V. Heald D.J."
Judge
Toronto, Ontario
January 17, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2255-96
STYLE OF CAUSE: KULBHUSHAN KUMAR KAURA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: JANUARY 16, 1997
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: HEALD, D. J. |
DATED: JANUARY 17, 1997
APPEARANCES:
Ms. Caroline Simone Dahan
For the Applicant
Mr. Stephen Gold
For the Respondent
SOLICITORS OF RECORD:
Green & Spiegel
Box 114
Standard Life Centre
2200-121 King Street West
Toronto, Ontario
M5H 3T9
For the Applicant
Department of Justice
2 First Canadian Place
Suite 3400, Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-2255-96
Between:
KULBHUSHAN KUMAR KAURA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 Muliadi v. Canada (1986, F.C.A.)
2 See Liyanagamage v. Canada (Minister of Citizenship and Immigration), (1994), 176 N.R. 4