Date: 20000530
Docket: IMM-1512-99
BETWEEN:
ABDUL MAJEED
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.:
[1] The applicant Abdul Majeed seeks judicial review of the visa officer"s refusal of his application for permanent residence as an entrepreneur.
[2] The first argument advanced on behalf of Mr. Majeed is that the visa officer erred in her interpretation and application of the definition of "entrepreneur" in subsection 2(1) of the Immigration Regulations, 1978 , SOR/78-172, as amended. The relevant portion of that definition 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 ... |
" 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, ... |
Counsel for the applicant submits that the visa officer, in focussing on the ability to "establish" a business, failed to consider whether Mr. Majeed could "purchase" a business or commercial venture in Canada within the meaning of the definition.
[3] The words "establish, purchase or make a substantial investment" are disjunctive and require the visa officer to assess each aspect separately: Mak v. Canada (Minister of Citizenship and Immigration) (1997), 38 Imm. L.R. (2d) 15 (F.C.T.D.) at paragraphs 11-13 and Chen v. Canada (Minister of Employment and Immigration) (1993), 20 Imm. L.R. (2d) 290 (F.C.T.D.) at paragraph 9.
[4] The applicant relies on certain statements made in his application and his affidavit in this proceeding to support the proposition that the visa officer failed to consider his ability to purchase a business.
[5] From an eleven-page document in which Mr. Majeed set out his business plan, reference is made to the following statement:
| One of my contact [sic] in the [M]iddle [E]ast, is currently looking at Boutiques & manufacturing ready-made garments in Montreal. I am in discussions with him. There are also possibilities that I join him and open up in Toronto taking advantage of his expertise and contacts and I control the business in Toronto, in which case I would prefer to have at least 51% of Toronto set-up .. |
This statement refers only to the possibility of setting up a business with a partner and does not state clearly the intention to purchase an enterprise.
[6] In a different seven-page document, where the applicant refers to his experience in business management, reliance is made on the following statement:
| It is anticipated that the business may be a sole proprietorship. However I am fully prepared to join an existing concern or link up with other entrepreneurs to form a partnership or corporation. As such I would like to retain 51% or controlling shares. |
Again, this statement is somewhat equivocal. It may refer to the acquisition of an equity position in an ongoing business or to the start-up of a new enterprise with partners.
[7] Finally, the applicant relies on a statement in his 78-paragraph affidavit:
| 53. I again explained that in import and export business the money stays rolling and that I strongly felt that I did have sufficient funds to support my planned business activities and moreover the Canadian suppliers would also be involved to some extent - (at this stage, I thought I should try to get away from this topic and therefore stated) - I also had other options such as a joint venture with one of my clients who was in the process of organizing his boutique/ ready-made garment manufacturing business in Montreal. There was a possibility that I would join him and buy / invest 51 percent in his business venture in Toronto and the possibility of joint venture with my relatives and friends in Canada. Also I mentioned about the stitching unit. [Emphasis added.] |
This is the only direct indication, in the documentary record before me, of the possibility of the applicant purchasing an interest in an existing business venture.
[8] The visa officer"s failure to focus on an applicant"s ability to "purchase" a business in Canada can only constitute a reviewable error if there is a factual basis which clearly establishes such an intention. An applicant may well decide to submit information with regard to only one of the three options in the definition, in which case the visa officer need not examine the other two: Bakhshaee v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 196 (F.C.T.D.) at paragraph 4.
[9] In this case, it is true that the visa officer focussed substantially, if not exclusively, on the applicant"s ability to establish a business in her decision and affidavit. This is consistent with the thrust of the interview which is recorded in her CAIPS notes. The references relied upon by the applicant concerning the possibility of purchasing a business are too peripheral, vague and speculative to impose on the visa officer the duty to address this option in her decision. Accordingly, the applicant"s first argument must fail.
[10] The applicant"s second submission is that the decision of the visa officer was based on irrelevant considerations.
[11] In evaluating an application in the category of entrepreneur, the visa officer"s determination should not turn solely on the applicant"s work experience as an employee rather than as an owner nor on whether the applicant has a proven track record in business. Each of these considerations is outside the scope of the definition. The focus must be on the requirement that the applicant has the intention and the "ability to establish, purchase, or make a substantial investment in a business or commercial venture in Canada": Hui v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 96 (C.A.) at 102.
[12] In this proceeding, the applicant challenges a statement made by the visa officer in her affidavit which, the respondent argues, was merely a response to an assertion made in the applicant"s own affidavit. It is useful here to recite in turn the statements made by the applicant and the visa officer respectively:
| a) according to the applicant: |
| 69. She said, I was successful in the past because there was a big organization"s name at my backing. I explained, though the name means a lot but at the same time the fact remains that competent executives are an absolute necessity to maintain the big name and operation, establish and run the business successfully and capture new opportunities. After all, it is individual"s capability that matters in playing vital role in organization"s progress. |
| b) according to the visa officer: |
| With respect to paragraph 69, the Applicant is an insurance manager with a large corporation and his previous experience is in insurance. He has never been solely responsible for the success of a business. I simply noted that he had worked within a big organization before and that being a self-employed entrepreneur with no corporate name behind him would present a very different situation from the one he was accustomed to; ... |
[13] In my view, the applicant has failed to establish that the visa officer relied on an irrelevant consideration in referring to the applicant"s earlier employment. The statement that "he has never been solely responsible for the success of a business" was made merely in response to the assertions in the applicant"s affidavit concerning the importance of competent executives in large business organizations. The visa officer was simply noting the nature of the applicant"s previous employment with an international insurer as a regional director in the Middle East and the fact that this differed from the type of business he was planning to establish in Canada.
[14] The visa officer"s letter of decision makes clear she understood that the applicant"s employment with an important insurer was not a negative factor in his application and that he did not require previous experience in operating his own business. In her words: "Although evidence of direct experience in operating a business is not a prerequisite for qualifying for permanent residence [as an entrepreneur], in conjunction with other aspects of an application it can be one factor which assists us determining the likelihood that you will meet the definition of entrepreneur." In her affidavit, she added that the applicant "had insufficient knowledge of the marketplace, the competition, the expected costs, etc. and had conducted inadequate research or planning."
[15] The visa officer"s closing comments in her CAIPS notes explain her decision:
| - Applicant has indicated his ability to establish a business is based on his previous experience and his sound financial position. |
| - Assumes cost of exporting Canadian goods will be cheaper than other markets, due to lower transportation costs. No evidence to support this. |
| - No actual research to determine if there is a market for these Canadian goods. Has not talked to any Canadian companies or distributors of these products. No idea of the costs involved to purchase goods, costs to transport or what he may sell them for to contacts in Middle East. Without this information, how does he know he can make money from this venture?? Or that the products will be cheaper to export from Canada? |
| - ... Although , it is not expected that specific details of the business will be known, the applicant has no idea of the relevant market, competition, costs etc. |
[16] In summary, I am satisfied that the visa officer"s refusal to accept the applicant as an entrepreneur within the meaning of the statutory definition was open to her on the basis of the documentary evidence. The applicant has not established any reviewable error. For these reasons, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
May 30, 2000
Date: 20000530
Docket: IMM-1512-99
OTTAWA, ONTARIO, THIS 30th DAY OF MAY 2000
PRESENT: THE ASSOCIATE CHIEF JUSTICE
BETWEEN:
ABDUL MAJEED
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON this application for judicial review of the visa officer"s refusal, dated February 10, 1999, with respect to the applicant"s application for permanent residence as an entrepreneur;
UPON review of the parties" written submissions and hearing of May 24, 2000 in Toronto, Ontario;
IT IS HEREBY ORDERED THAT:
| This application for judicial review is dismissed. |
"Allan Lutfy"
A.C.J.