Date: 20040227
Docket: IMM-6321-02
Citation: 2004 FC 298
Vancouver, British Columbia, Friday, the 27th day of February, 2004
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
ABBAS NAMJOO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Abbas Namjoo, a citizen of Iran, applied in 1998 for permanent residence in Canada. He was interviewed by a Visa Officer at the Canadian Embassy in Damascus on September 22, 2002. By letter dated October 23, 2002, his application was denied.
[2] The basis of the Visa Officer's decision was as follows:
You do not meet the definition of entrepreneur because I am not satisfied that you have the ability to establish a business in Canada that will make a significant contribution to the economy or that you have the ability to provide active and ongoing participation in the management of this business. Based on a combination of factors, I am not satisfied that you have the relevant experience or the ability to successfully manage a business in Canada.
[3] Mr. Namjoo seeks judicial review of that decision.
Issues
[4] The issues raised by Mr. Namjoo in this application are as follows:
1. Whether the Visa Officer properly assessed Mr. Namjoo under the "entrepreneur" category, and ignored and misconstrued the evidence before him.
2. Whether the failure of the Visa Officer to assess Mr. Namjoo as a self-employed person constitutes a reviewable error.
Analysis
Issue #1: Did the Respondent breach its duty to assess the Applicant as an"entrepreneur"?
(a) "Hollow" Interview by inexperienced Visa Officer
[5] Mr. Namjoo alleges that his interview with the Visa Officer was "hollow" and conducted in bad faith. In support of this assertion, Mr. Namjoo relies on the cross-examination of the Visa Officer, wherein it was learned that the Visa Officer had only worked in the area of business immigration selection for eight weeks and received just five days of training.
[6] Although the Visa Officer is by no means a veteran in the field, this does not persuade me that he is not qualified to perform his job or that he acted in bad faith. The focus must be on the decision itself and not on the experience of the Visa Officer. The issue before the Court is
whether the Visa Officer's decision was reasonably open to him on the evidence. Whether the Visa Officer had one day or 20 days of experience is, in my view, not relevant to whether he made a reviewable error.
[7] Upon carefully reviewing the Computer Assisted Immigration Processing System ("CAIPS") notes, I find that the Visa Officer directed his mind to the right issues. In the absence of evidence to the contrary, the Visa Officer must be presumed to have acted in good faith.
(b) Failure to Carry out Full Assessment
[8] The second alleged error is that the Visa Officer failed to assess Mr. Nanjoo, not only on his ability to establish a business or commercial venture, but also on his ability to purchase or make a substantial investment in a business or commercial venture (Mak v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 375 (T.D.) (QL)).
[9] Subsection 2(1) of the former Immigration Regulations, 1978 (the "Regulations") defines "entrepreneur" as follows:
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(a) an immigrant 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 dependents, and
(b) who intends and has the ability to provide active and on-going participation in the management of the business or commercial venture;
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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, de façon à contribuer de manière significative à la vie économique et à permettre à au moins un citoyen canadien ou résident permanent, à part l'entrepreneur et les personnes à sa charge, d'obtenir ou de conserver un emploi, et
b) qui a l'intention et est en mesure de participer activement et régulièrement à la gestion de cette entreprise ou de ce commerce;
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[10] The applicant for permanent residence has the burden of proving that he meets the regulatory definition of "entrepreneur" (Saadat v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 39 (T.D.) (QL)). According to the Visa Officer's decision and the CAIPS notes, Mr. Namjoo simply did not demonstrate sufficient business acumen to establish a successful and economically viable business in Canada. The Visa Officer expressed concerns about the Applicant's limited education, his lack of transferrable business experience, his failure to conduct market research, the lack of detail in his business plan, the absence of third-party verification of capital available to him and his limited fluency in English. These are all valid considerations. The CAIPS notes indicate that the Visa Officer asked appropriate questions and considered all of the evidence before him. For these reasons, I think that the Visa Officer did, in fact, properly assess the Applicant in the "entrepreneur" class.
[11] A further objection of Mr. Namjoo is that, within the category of "entrepreneur", the Visa Officer erred by only considering his ability to establish a business in Canada, not purchase or make a substantial contribution to an existing one.
[12] Although in Mak, supra, Justice Campbell held that the duty of procedural fairness owed to an applicant requires a visa officer to consider not only whether an applicant could establish a business, but also whether he or she could purchase or make a substantial contribution to an existing one, I note two later decisions of this Court that held otherwise. In Bakhshaee v. Minister of Citizenship of Immigration [1998] F.C.J. No. 1002 (T.D.) (QL), Justice Décary cast the issue not as one of fairness, but rather, as concerning regulatory requirements. Justice Décary held that since the applicant chose to base his application for permanent residence on the ability to establish a business and nothing more, the visa officer was under no obligation to canvass the other options within the "entrepreneur" category at the interview. Bakhshaee, supra was followed by Justice Lutfy in Majeed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 742 (T.D.) (QL)).
[13] The reasoning of Justice Décary in Bakhshaee, supra is consistent with the burden that is on an applicant to prove that he or she meets the regulatory definition of "entrepreneur". In the absence of any evidence proving the intent or ability to purchase or contribute toward an existing business in Canada, I fail to see how the duty of procedural fairness would require the Visa Officer to make inquiries that would extend beyond the scope of the evidence that Mr. Namjoo
submitted.
Issue #2: Did the Respondent breach its duty to assess the Applicant as a "self-employed person"?
[14] There are three distinct categories of business immigrants, namely, investors, entrepreneurs and self-employed persons. These categories are separately defined in the Regulations (s. 2(1)). Mr. Namjoo submits that he applied to be considered as both an "entrepreneur" and a "self-employed person" and that the Visa Officer erred by not considering his application in the self-employed category as well as the entrepreneur category.
[15] While there is some evidence that Mr. Namjoo intended to apply in both categories, I believe that the evidence supports a conclusion that the Visa Officer did not err by considering him in only the entrepreneur category.
[16] In Mr. Namjoo's "Business Applicant Summary" form, he indicated that he wished to be considered under both categories. In the application itself, however, he only indicated his interest in the entrepreneur category. According to CAIPS notes, at the outset of the interview, the Visa Officer read the statutory definition of "entrepreneur" to Mr. Namjoo and confirmed that he (1) understood the definition and (2) wanted to be considered under this category. During cross-examination on his affidavit, the Visa Officer stated that Mr. Namjoo did not ask to be considered under both categories but agreed with Mr. Namjoo's counsel that reference to both categories was made in a cover letter dated July 8, 1998, which was sent with the Applicant's application to the Canadian Embassy.
[17] In my view, the Visa Officer acted reasonably in concluding that Mr. Namjoo did not apply under both categories. I rely primarily on the application itself and the statement by the Visa Officer that Mr. Namjoo did not ask to be assessed under both. The cover letter to the application, written by Mr. Namjoo's immigration consultant, is not helpful as it states that Mr. Namjoo is applying as an entrepreneur or self-employed person. Use of the word "or" suggests that the immigration consultant intended to use these terms interchangeably and was not, therefore, indicating that Mr. Namjoo intended to apply under both categories.
[18] Since I am satisfied, on balance, that Mr. Namjoo's application was only made under the entrepreneur category, there was no obligation on the Visa Officer to consider the self-employed category (Wang v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 677 (T.D.) (QL)).
Conclusion
[19] For these reasons, the application is dismissed.
[20] Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS that:
1. The application is dismissed.
2. No question is certified.
(Sgd.) "Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6321-02
STYLE OF CAUSE: ABBAS NAMJOO
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATIONA
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: February 26, 2004
REASONS FOR ORDER AND ORDER: SNIDER J.
DATED: February 27, 2004
APPEARANCES:
Mr. Richard Kurland FOR APPLICANT
Mr. Keith Reimer FOR RESPONDENT
SOLICITORS OF RECORD:
Kurland Tobe FOR APPLICANT
Vancouver, B.C.
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General
of Canada