Date: 19981117
Docket: IMM-4965-97
BETWEEN:
SHAHRAM POURKAZEMI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant is a citizen of Iran who has been residing in Hamburg, Germany since 1985. During 1986-87, he worked as a night auditor in the hotel industry. Between 1988-91, he owned a tobacco shop. Since 1992, he has been operating a similar but larger retail outlet, also selling newspapers, lottery tickets and other related items. In 1996, he applied for permanent residence in Canada as a self-employed person with the intention of establishing a convenience store in Toronto.
[2] In refusing the application for permanent residence, the visa officer decided that: (a) the applicant"s intended business "would not be of benefit" to Canada within the meaning of "self-employed person"; and (b) he had not demonstrated the required knowledge to establish a successful convenience store in Canada.
[3] The applicant challenges the visa officer"s decision on two grounds. Firstly, he argues that the visa officer erred in law in her failure to apply properly section 8 of the Immigration Regulations .1 According to the applicant, the visa officer should have assessed his ability to become "successfully established" in his intended business in Canada pursuant to subsection 8(4) of the Regulations, instead of wrongly focussing on whether his convenience store would make "a significant contribution to the economy" of Canada within the meaning of the definition of "self-employed person". Secondly, the visa officer breached the rules of procedural fairness: (a) in her assessment of the significant economic contribution the applicant"s intended self-employment would bring to Canada; (b) in her undue focus on the need to conduct comprehensive market research; and (c) in not providing the applicant a fair opportunity to respond to information she received from the Ontario Ministry of Industry and Business. Each of these two grounds will be considered in turn.
The visa officer"s assessment under section 8 of the Immigration Regulations
[4] It is useful to set out the definitions of "self-employed person" and "entrepreneur" in the Immigration Regulations :
"self-employed person" means an immigrant who intends and has the ability to establish or purchase a business in Canada that will create an employment opportunity for himself and will make a significant contribution to the economy or the cultural or artistic life of Canada ;
" travailleur autonome " s"entend d"un immigrant qui a l"intention et qui est en mesure d"établir ou d"acheter une entreprise au Canada, de façon à créer un emploi pour lui-même et à contribuer de manière significative à la vie économique, culturelle ou artistique du Canada ;
"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 ongoing participation in the management of the business or commercial venture ; ... [Emphasis added.]
" 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, 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 ; ...
[5] Counsel for the applicant made it clear that he did not consider "a significant contribution to the economy" of Canada to be an appropriate criteria in the regulatory definition of "self-employed person". However, it is acknowledged that the applicant does not seek a declaration that the words "a significant contribution to the economy" constitute ultra vires delegated legislation.2
[6] Section 8 of the Immigration Regulations refers to the selection criteria for determining whether an immigrant will be able to become successfully established in Canada. Subsections 8(1) and (4), together with paragraph 9(1)(b), are relevant to the assessment of an immigrant who intends to become a self-employed person:
8.(1) Subject to section 11.1, for the purpose of determining whether an immigrant ... will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant,
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in Column I of Schedule I ;
(b) in the case of an immigrant who intends to be a self-employed person in Canada, on the basis of each of the factors listed in Column I of Schedule I, other than the factor set out in item 5 thereof ;
(c) in the case of an entrepreneur, an investor or a provincial nominee, on the basis of each of the factors listed in Column I of Schedule I, other than the factors set out in items 4 and 5 thereof.
...
(4) Where a visa officer assesses an immigrant who intends to be a self-employed person in Canada, he shall, in addition to any other units of assessment awarded to that immigrant, award 30 units of assessment to the immigrant if, in the opinion of the visa officer, the immigrant will be able to become successfully established in his occupation or business in Canada.
8.(1) Sous réserve de l"article 11.1, afin de déterminer si un immigrant ... pourront réussir leur installation au Canada, l"agent des visas apprécie l"immigrant ou, au choix de ce dernier, son conjoint :
a) dans le cas d"un immigrant qui n"est pas visé aux alinéas b ) ou c), suivant chacun des facteurs énumérés à la colonne I de l"annexe I ;
b) dans le cas d"un immigrant qui compte devenir un travailleur autonome au Canada, suivant chacun des facteurs énumérés dans la colonne I de l"annexe I, autre que le facteur visé à l"article 5 de cette annexe ;
c) dans le cas d"un entrepreneur, d"un investisseur ou d"un candidat d"une province, suivant chacun des facteurs énumérés dans la colonne I de l"annexe I, sauf ceux visés aux articles 4 et 5 de cette annexe.
...
(4) Lorsqu"un agent des visas apprécie un immigrant qui compte devenir un travailleur autonome au Canada, il doit, outre tout autre point d"appréciation accordé à l"immigrant, lui attribuer 30 points supplémentaires s"il est d"avis que l"immigrant sera en mesure d"exercer sa profession ou d"exploiter son entreprise avec succès au Canada.
9.(1) Subject to subsection (1.01) and section 11, where an immigrant ... makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if
...
9.(1) Sous réserve du paragraphe (1.01) et de l"article 11, lorsqu"un immigrant ... présente une demande de visa d"immigrant, l"agent des visas peut lui en délivrer un ainsi qu"à toute personne à charge qui l"accompagne si :
...
(b) where the immigrant and the immigrant"s accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8, and
| (i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment, ... [Emphasis added.] |
b) lorsqu"ils entendent résider au Canada ailleurs qu"au Québec, suivant son appréciation de l"immigrant ou du conjoint de celui-ci selon l"article 8 :
| (i) dans le cas d"un immigrant, autre qu"un entrepreneur, un investisseur, ou un candidat d"une province, il obtient au moins 70 points d"appréciation, ... |
[7] The definition of "self-employed person" raises at least two tests: (a) does the applicant have the ability to establish the intended business in Canada; and (b) will that business make a significant contribution to the economy of Canada?
[8] In this case, the visa officer answered both questions in the negative. This is set out in her CAIPS notes, in her letter of decision and in her affidavit and cross-examination. The applicant had not visited Canada and had no business contacts here. He had not targeted a business for acquisition nor identified premises to establish one. He was unaware of convenience store hours in Canada or of the cost of purchasing such a business. He had no information concerning the success of similar enterprises in this country. He also noted that he might subsequently establish an export-import or foreign trade business in Canada. With this information, the visa officer concluded that his proposed business was not likely to be successful or viable. She further concluded, under the second test, that the intended business would not make a significant contribution to the economy of Canada.
[9] The applicant"s principal challenge is that the visa officer focussed unduly on the criteria of the "significant contribution to the economy" of Canada. This submission is twofold.
[10] In the first place, the applicant argues that the principal assessment to be made by the visa officer is the one concerning his ability to become successfully established in his occupation or business, pursuant to subsection 8(4). It was wrong for her, according to the applicant, to follow the respondent"s Operational Manual which states that the applicant must initially meet the regulatory definition of "self-employed person".3 Rather, she should have assessed this immigrant on the basis of the criteria under the independent category as required by paragraph 8(1)(b). She should then have focussed on subsection 8(4) to determine whether 30 units of assessment should be awarded for his ability to become successfully established in his occupation or business in Canada. As I understand this argument, the visa officer must direct herself initially to paragraph 8(1)(b) and subsection 8(4). The visa officer errs if she first focusses on the definition of "self-employed person".
[11] It is true that the respondent"s Operational Manual is only a guideline and must be disregarded where it is inconsistent with a statutory or regulatory provision. However, this is not the case here. In my view, it makes no difference, at least not on these facts, if the visa officer focussed first on the applicant"s ability to meet the regulatory definition of "self-employed person" or if she followed the process suggested by counsel. The paper screening is the first assessment pursuant to paragraph 8(1)(b ). During the interview, the visa officer has another opportunity to review the criteria of paragraph 8(1)(b) and, more importantly, to consider whether the applicant is eligible for thirty additional units in accordance with subsection 8(4) if, in her opinion, he can become "successfully established in his occupation or business in Canada". On the basis of her interview with the applicant and for the reasons set out in her CAIPS notes and in her letter of decision,4 the visa officer concluded that his intended business was not likely to be successful or viable. Counsel for the applicant acknowledges that there is no substantive difference between the first test of the regulatory definition (does the applicant have the ability to establish the intended business in Canada?) and the one in subsection 8(4). It matters little, it seems to me, if that assessment is made initially, as this visa officer did when she considered the first test in the definition of self-employed person, or later in the process, as urged by the applicant, in the context of subsection 8(4). The result will be the same.
[12] The applicant has a second challenge to the visa officer"s decision-making process. This argument is based on the wording in paragraph 8(1)(b ) for self-employed persons which is said to have a different meaning than the wording of paragraph 8(1)(c) for entrepreneurs. The applicant"s counsel distinguishes the visa officer"s role in assessing "self-employed persons" as opposed to "entrepreneurs" on the basis of the words "who intends to be a self-employed person" in paragraph 8(1)(b ). The words "intends to be" are not found in paragraph 8(1)(c ) which governs the assessment of an "entrepreneur". Counsel states that this difference in language, by statutory presumption, is purposeful and not inadvertent. In his view, the words "intends to be" require the visa officer to assess his application without determining whether he meets the second test of the regulatory definition (will the business make "a significant contribution to the economy" of Canada?). For the applicant, once the visa officer concludes that the immigrant has the ability to establish the intended business in Canada, no further determination should be made concerning the significant contribution of that business in Canada"s economy.
[13] I do not accept this submission. Section 8 instructs the visa officer on the assessment of different classes of immigrants. The purpose of subsection 8(1) is to link the assessment of particular categories of immigrants with the factors in Schedule I of the Regulations. The different wording in paragraphs (a), (b) and (c) of subsection 8(1) can be explained quite simply by the different factors of Schedule I to be used in assessing the different categories of immigrants. In my view, this is a more straightforward explanation than the one suggested by the applicant. Moreover, the words "an immigrant who intends to be" apply to the sole category of immigrant dealt with in paragraph 8(1)(b ). The same words are not applicable to the three categories in paragraph 8(1)(c), particularly not in the case of "an investor" and probably not in the case of "a provincial nominee".
[14] The test of "significant contribution to the economy of Canada" is included in the definitions of both "self-employed person" and "entrepreneur". Both definitions also speak of the immigrant"s intention to establish a business. The same is not true for the investor category where certain investments must be made prior to the issuance of the visa. The applicant argues that the visa officer ought not to refer to the definition of "self-employed person" because the words "intends to be" are found in subparagraph 8(1)(b ) and not in subparagraph 8(1)(c). This would result in circumventing the test of "significant benefit to the economy of Canada", at least for self-employed persons. I do not understand how the words "intends to be" can do away with the significant contribution test, and particularly so for one category of immigrant but not another.5 The difference in wording does not lead to the consequence urged by the applicant.
[15] In support of his submissions that the visa officer is not to refer to the significant contribution test, the applicant also relies on this statement of my colleague Justice MacKay in Grube v. Canada (Minister of Citizenship and Immigration):6
| The term "self-employed person" is defined in the regulations but only in general terms relating to the intent and ability of the prospective immigrant, "to establish or purchase a business in Canada that will create an employment opportunity for [the immigrant] and will make a significant contribution to the economy or the cultural or artistic life of Canada". Assessing that intent and ability is then to be done in accord with the factors listed in column I of Schedule I other than factor 5. Little or no guidance is provided by the Regulations about the process of assessing those factors. |
There is nothing in this statement, particularly when the decision is read in its entirety, to suggest that Justice MacKay had concluded that the regulatory definition was to be ignored.
[16] In summary, the words "intends to be" in paragraph 8(1)(b ) cannot have the meaning and impact urged by the applicant. The immigrant must demonstrate, prior to landing, the intention and the ability to become self-employed in Canada in accordance with the first test in the regulatory definition and subsection 8(4). The immigrant intending to become self-employed in Canada is also screened in accordance with those Schedule I criteria specified in paragraph 8(1)(b). This is an intelligible explanation for the different wording in paragraphs (b) and (c) of subsection 8(1) and one which does not require setting aside, for no apparent reason, the second or significant contribution test in the regulatory definition.
Was there a denial of procedural fairness?
[17] None of the three points raised by the applicant to establish the visa officer"s denial of procedural fairness warrants this Court"s intervention. The concept of "significant contribution to the economy" is a fluid one and its meaning will depend on the circumstances of each case. The Operational Manual underscores this point:
| To qualify because of a significant contribution to the economy, the applicant"s proposed business must make a specific contribution to the area of destination. This could be a specialized trade or service that is not readily available from a Canadian source. This category may attract, for example, farmers or potential operators of small businesses which could find niches in Canada"s existing system.7 |
I understand this to mean, for example, that a convenience store may, in a certain "area of destination", make a "specific contribution" where the same may not be true in Toronto. In this regard, the visa officer advised the applicant that she would be communicating with the Ontario Ministry of Industry and Business simply to confirm, "out of an abundance of caution", her perception that "convenience stores were not needed in Toronto".8 There is no reviewable error in this aspect of the visa officer"s decision. Moreover, these circumstances did not require her to afford the applicant a further opportunity to respond once she received this confirmation from the Ministry. The facts in Muliadi v. Canada (Minister of Employment and Immigration)9 are substantially different from those in this case. Finally, the visa officer questioned the applicant concerning his "market research". The visa officer"s CAIPS notes indicate her concern for the applicant never having visited Canada, his limited information concerning his intended business and his alternative intention to establish an export-import business. Put differently, the visa officer appears to have been of the view that the applicant had not focussed sufficiently on his business plan. It was open to her to reach such a conclusion on the evidence in this case.
Conclusion
[18] The purpose of the Immigration Act is to permit immigration, not prevent it.10 The visa officer must assess the applications for permanent residence in a manner consistent with the spirit of the legislation.
[19] In this case, the applicant has not demonstrated a reviewable error in the visa officer"s assessment of his ability to establish successfully a convenience store in Toronto. Even if another person may have placed greater emphasis on the applicant"s business experience in Germany, it was open to this visa officer to conclude that insufficient steps had been taken to show that the intended enterprise would succeed in Toronto.
[20] Since the applicant has failed to establish that the Court should interfere with the visa officer"s assessment pursuant to the first test of the regulatory definition or the one in subsection 8(4), his argument concerning the significant contribution test becomes academic. I have nonetheless addressed these submissions and have concluded that the words "intends to be" in paragraph 8(1)(b ) of the Regulations do not have the effect of removing the significant contribution test from the visa officer"s assessment of the application.
[21] For these reasons, this application for judicial review will be dismissed. As agreed at the hearing, the parties may file written submissions concerning the certification of a serious question within seven days of the date of these reasons.
"Allan Lutfy"
Judge
Ottawa, Ontario
November 17, 1998
__________________
2 In Chan v. Canada (Minister of Employment and Immigration) (1994), 24 Imm. L.R. (2d) 305, Rothstein J. rejected the argument that the test of "significant contribution to the economy" of Canada in the definition of "entrepreneur" was ultra vires the Immigration Act.
3 Citizenship and Immigration Canada, Immigration Manual (OP) Overseas Processing (Ottawa: Employment and Immigration Canada, 1996-) at 28 and following. Under the definition of self-employed person, the guideline states: "In order to be approved as a self-employed person, the applicant must first meet the regulatory definition, and then comply with the selection criteria for that category of immigrant. Most applicants are selected or refused because they meet, or fail to meet, the definition."
4 In the fourth paragraph of her letter of decision, the visa officer stated: "I note that you have never visited Canada nor have you any knowledge of starting up such a venture in Canada." This point is reiterated in paragraph 6 of her affidavit.
5 I also note that the "provincial nominee" must establish the "significant benefit" of his or her immigration to the industrial development of the designated province.
6 (1996), 34 Imm. L.R. (2d) 219 at 228 (F.C.T.D.).
8 See paragraph 11 of the visa officer"s affidavit.
10 Hajariwala v. Canada (Minister of Employment and Immigration),[1989] 2 F.C. 79 (T.D.) and Yang v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 48 (F.C.T.D.).