Date: 19980710
Docket: IMM-3316-97
BETWEEN:
WALERIJ LOBZOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN, J.
[1] In this judicial review of a decision of a visa officer, there is only one issue of significance. In denying the applicant's permanent residence application as an entrepreneur, did the visa officer err by basing his decision to deny solely on the applicant's lack of past business experience or business training?
[2] The applicant applied in the entrepreneur category (and as a self-employed farmer, but this is not relevant for purposes of this judicial review). The definition of entrepreneur in subsection 2(1) of the Immigration Regulations provides:
| "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 a business or commercial venture. |
[3] The applicant wanted to engage in the house construction business. The visa officer stated in his decision:
| In reaching my negative determination, I took into account that you do not have a history of significant business responsibility, no proof of any past success in business while living in the former Soviet Union or in Germany and no specialized business training. At your interview, you advised and this was confirmed by your legal representatives letter of 14 May 1997 that you never owned a commercial business of your own either in the former Soviet Union or in Germany, the two countries where you have resided. Although you have supervised the construction of several houses for your own family's use during the past twenty years, the only other home construction supervisory experience that you stated at your interview that you ever had was when you worked for Mr. Walter in the former Soviet Union. I determined this position to be the Canadian equivalent to a foreman, general carpenters position. While working for Mr. Walter, you supervised carpenters in building six to eight wooden homes over the time period of several years. This experience ended in 1988 when you immigrated to Germany. While you worked for Mr. Walter, I noted that Mr. Walter hired the tradespeople you supervised1. |
[4] The applicant says the visa officer erred by basing his refusal solely on the applicant's lack of past business experience and in so doing, placed undue emphasis on this consideration. The applicant relies on cases such as Grube v. Canada (Minister of Citizenship and Immigration) (1996) 34 Imm L.R. 2d 219, in which MacKay J. stated at page 227:
| That experience, as a self-employed person, may well be a factor to be favourably considered when determining whether an applicant is likely to become successfully established as a self-employed person in Canada, but it is not the sole criterion to be considered, and it must be considered in light of the occupation sought to be undertaken in Canada. It may be of greater significance in relation to certain occupations than it is to others. |
[5] I would first observe that Grube and the other cases referred to by the applicant are cases of applicants in the self-employed category where, in accordance with the definition of self-employed persons, the applicants were proposing that they would create an employment opportunity for themselves and would make a significant contribution to the cultural or artistic life of Canada. In Grube, the female applicant intended to teach and coach ballet and choreography. In such an occupation, past business experience would, I think, be much less important than when the contribution of the applicant is intended to be economic and especially where the applicant is applying in the entrepreneur category. Therefore care must be taken in applying the dicta in such cases to applicants in the self-employed "economic" category or in the entrepreneur category.
[6] However, I do accept that past business experience is not the sole criterion to be considered, that it must be considered in light of what is intended to be undertaken in Canada and that it may be of greater significance in relation to some undertakings than others.
[7] In the present case, although the visa officer appears to have accepted that the applicant had experience in building houses and in various trades, there is no indication that the applicant had past business experience or training. It would appear that in order to compensate for this deficiency, the applicant submitted a letter from an individual he had met in Canada who was prepared to be an assistant in the applicant's proposed construction business. In addition, it appears the assistant had some communication with another home builder who indicated that he would be prepared to discuss future joint ventures with the applicant.
[8] However, both these letters were preliminary and general. It is only speculative as to whether a joint venture arrangement would be possible. The visa officer's decision does indicate that he took into account applicant's counsel's written submission which expressly refers to the joint venture letter. The visa officer's notes also record that the applicant was asked why he thought his business would be successful and that the applicant said he was not worried about competition because he thought he could obtain building materials cheaply through contacts.
[9] The applicant has not convinced me that the visa officer placed undue emphasis on absence of past experience in this case. The visa officer is obliged to assess the ability of an applicant to establish, purchase or make a substantial investment in a business in Canada and to provide active and ongoing participation in the management of the business. While past business experience may not be the only factor to consider, certainly in the construction business, it is an important one. That the applicant was unconcerned about competition reflects his lack of business experience. If there was credible evidence that a specific joint venture arrangement had been made that would be a substitute for past business experience, this should be considered. However, in this case, the evidence of a proxy for past business experience is obviously very weak. Given the minimal weight it justifies in this case, it is not surprising that the visa officer made no express reference to it in his decision.
[10] In the absence of the applicant providing any significant evidence of alternatives for past business experience, the visa officer was left to consider the application on the basis of applicant's past experience in the construction of homes but his lack of past experience in business and lack of business training. In the circumstances of this case the visa officer did not place undue emphasis on lack of past business experience or business training.
[11] The judicial review must be dismissed.
"Marshall Rothstein"
Judge
Toronto, Ontario
July 10, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3316-97
| STYLE OF CAUSE: WALERIJ LOBZOV |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JULY 9, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: JULY 10, 1998
APPEARANCES:
Mr. James Steele
For the Applicant
Mr. Stephen Gold
For the Respondent
SOLICITORS OF RECORD:
Steele, Calandra & Company
Barristers & Solicitors
410 - 141 Adelaide Street West
Toronto, Ontario
M5H 3L9
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980710
Docket: IMM-3316-97
Between:
| WALERIJ LOBZOF |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 The evidence is that the tradespeople were volunteers from the applicant's church but this factual error in the visa officer's decision is of no consequence.