Date: 19980723
Docket: IMM-2937-97
BETWEEN:
ASHOK KUMAR CHHIBBER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of a decision of a visa officer, Marlene Edmond, on June 10, 1997 to deny the applicant's application for permanent residence in the self-employed category.
FACTS
[2] The applicant, a citizen of India, has a wife and two sons. He is a self-employed businessman who operates two of his own businesses in New York. He owns and operates a tobacco shop called M.M. Smoke Shop, as well as operating as a "jobber", selling ladies garments at flea markets.
[3] After submitting several documents to the Canadian Consulate General in New York, the applicant attended an interview with the visa officer. At the interview, the visa officer expressed suspicion about the applicant's purchase of the M.M. Smoke Shop from the applicant's sister-in-law. At the time, the visa officer only had a written statement from the applicant's sister-in-law as proof of the applicant's ownership of the business. The applicant allegedly showed her his share certificates for the business, but the visa officer stated that the transfer of the business should have been effected through a lawyer in order to fulfil certain legal requirements.
[4] The applicant submits that he was not asked any questions about the operations of his tobacco shop or his business as a jobber. However, the respondent notes that the visa officer's interview notes state that the applicant sells cigars, cigarettes and lottery tickets, and that he receives a six per cent commission on the sale of New York State Lottery tickets. Thus, the respondent submits that she clearly discussed the applicant's tobacco shop.
[5] The applicant stated that he had previously worked as a shipping clerk, a salesman and a shipping manager. The applicant also stated that, although he had never been to Canada, he had many friends and relatives in the Toronto area who are self-employed and could assist the applicant.
[6] The visa officer noticed that the net profit of the business was US$ 2,325 in 1993 and US$ 1,109 in 1994 and advised the applicant that his business did not appear to be very profitable and did not prove that he had the ability to establish a business in Canada.
[7] After the interview, the applicant's lawyer sent further documents to the visa officer including copies of the applicant's share certificates, cancelled rent cheques for the business signed by the applicant, letters from two previous employers outlining the applicant's work duties, a letter from the applicant's sister-in-law regarding the notice of transfer of shares and ownership to the applicant and a letter from Smokes & Butts International to demonstrate that the applicant owned the shop. The applicant's lawyer also stated that he spoke to an attorney in New York who stated that the transfer of the business to the applicant had fulfilled all legal requirements. The visa officer accepted that the applicant was the owner of the company that owned the smoke shop.
[8] The visa officer denied the application for permanent residency. In the decision, the visa officer stated that the applicant did not have the ability to establish or purchase a business which will make a significant contribution to Canada's economy.
[9] The visa officer stated that the applicant's previous job duties were limited to office work/clerical and sales. She added that the applicant did not appear to have a good knowledge of his tobacco shop business, he had never been to Canada yet he intended to establish several tobacco stores in Toronto.
[10] She also noted that he had US$ 60,307.31 in liquid assets, life insurance dividends of US$ 29,280 and property in India estimated at US$ 40,000. The visa officer concluded that these funds would not realistically allow the applicant to purchase a business which would make a significant contribution to the economy as well as support the applicant and his dependants.
SUBMISSIONS
Applicant's submissions
[11] In the written submissions for the judicial review application, the applicant made several submissions as to why the visa officer's decision should be set aside. At the hearing before me, the applicant made two submissions as to why the decision of the visa officer should be quashed.
[12] The pivot issue submitted by the applicant is that the visa officer erred in deciding that the applicant lacked the ability to establish a successful "smoke shop" business based on the profitability of the applicant's business.
[13] The second issue submitted by the applicant is that the visa officer erred when she decided that the applicant would be unable to establish a business in Canada which would make a significant contribution to the economy of Canada.
DISCUSSION
[14] After a review of all the material that was before the visa officer, I cannot conclude that she exercised her discretion erroneously in refusing the applicant's application.
[15] The onus is on the applicant to convince the visa officer that he can establish a successful business in Canada and one that would make a significant contribution to the economy of Canada.
[16] What was the evidence before the visa officer to show that the applicant could establish a successful "smoke shop" business - that this business would make a significant contribution to Canada's economy?
[17] The visa officer states in paragraph 9 of her affidavit:
| The Applicant did not seem to have a good knowledge of his business. I explained to the Applicant at the interview that I was of the opinion that, with the assets that he has and his family responsibilities, I was of the opinion that he would not be able to purchase a business in Canada. I also advised the Applicant that I was of the opinion that he did not have the ability to establish a business in Canada which would make a significant contribution to the economy or the cultural or artistic life of Canada. |
[18] The applicant purchased the business in 1991 from his sister-in-law for US$ 50,000 and the net worth of the business was US$ 58,903 in 1996. This is an increase of approximately US$ 9,000 in net worth over approximately six years.
[19] The income tax returns for the business for the years 1993, 1994 and 1995 show, as Counsel for the respondent states 'the business to be marginally profitable'.
[20] According to the U.S. Corporation Income Tax Return for the 1993 tax year, the M.M. Smoke Shop Inc. had gross sales of US$ 96,903 which left a gross profit of US$ 14,797 plus US$ 22,879 revenue from Lotto commissions for a total gross revenue of US$ 37,676 from which were deducted the expenses of US$ 35,351 leaving a taxable net of US$ 2,325.1
[21] This tax return shows Compensation of officers as US$ 9,120. I assume this is money paid to the applicant. Therefore the total net income available from the business for 1993 is US$ 11,445. Not a substantial amount of money to support a wife and children. It is not a substantial sum of money to show the capability to run a successful business.
[22] For the year 1994, the tax return shows taxable income of US$ 1,109 plus Compensation of officers in the sum of US$ 9,120 for a total of US$ 10,229. The net is less than in 1993.2 Once again, not a sign of having the capability to run a successful business.
[23] For the year 1995, the business shows a substantial increase in gross receipts from the 1994 tax year. In 1994 the gross receipts on sales were US$ 87,455 while in 1995, it is shown as US$ 554,975. The gross profit in 1995 is shown as US$ 91,548 from which was deducted US$ 15,006 compensation of officers and US$ 18,750 as salaries and wages. After other deductions the total taxable income is US$ 7,731 from which US$ 1160 of tax must be paid.
[24] Therefore, at best, in 1995 the applicant's earning from the business is US$ 15,006, US$ 18,750 and US$ 6,571 for a total of US$ 40,327.
[25] I am satisfied that, even with the sudden increase in revenue for the 1995 tax year, the visa officer did not misuse her discretion in refusing the applicant's application because she believed the applicant would not be capable of establishing a successful business.
[26] The applicant's application for permanent residence in Canada was also refused because, as the visa officer states in her letter of refusal dated June 3, 1997, "... you have failed to prove that you have the ability to establish or purchase a business in Canada that ... will make a significant contribution to the economy or the cultural or artistic life of Canada".
[27] Neither party could submit any jurisprudence that defines the word "significant".
[28] Significant is defined in the American Heritage Dictionary as "important or notable" when used with "contribution". In the Shorter Oxford English Dictionary, Vol II, it is also defined as "important or notable".
[29] I fail to see how, by opening a smoke shop, the applicant will make an important or notable contribution to the economy of Canada. I fully understand that one need not show that the business would give employment to many persons to become a significant contributor to Canada's economy, but the evidence does not show the applicant would hire a single Canadian.
[30] It is not for me to try to "second-guess" the visa officer's discretionary decision. Based on the evidence before her, her decision appears reasonable.
[31] The application for judicial review is denied.
[32] Neither party submitted a question to be certified.
JUDGE
Ottawa, Ontario
__________________