Date: 20020819
Docket: IMM-25-01
Neutral citation: 2002 FCT 879
BETWEEN:
TATIANA BONDAR
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.A. (ex officio)
[2] The applicant, a citizen of Russia, was the sole shareholder of a Canadian company that was established in 1996 and that sold Canadian-made clothing to customers in Russia and other countries formerly part of the Soviet Union. The applicant was actively involved in the day-to-day management of the business. The business had one employee, in addition to the applicant. The applicant had invested approximately $500,000 in the business. Annual sales were almost $7 million for the year ended January 31, 1998, over $4 million for the year ended January 31, 1999, and approximately $2.8 million for the year ended January 31, 2000. The business had a net income of $81,700 for the year ended January 31, 1998, $2,719 for the year ended January 31, 1999 and a loss of $6,955 for the year ended January 31, 2000.
[3] In her decision denying the application, the visa officer stated:
The fact that you explained that you had not done any research into possible new clients in order to expand and improve on the business you own in Canada as per your stated intentions demonstrate to this lack of ability.
[4] The applicant's primary point in this judicial review is that the visa officer misinterpreted the definition of "entrepreneur" in the Immigration Regulations, 1978, SOR/78-172 as requiring an applicant to provide evidence of an intention and ability to establish a business in Canada after being granted a visa. The applicant says the visa officer ignored the fact that in this case, the applicant had an existing business in Canada and that, had the existing business been taken into account, the applicant would easily have met the definition of "entrepreneur" in the Immigration Regulations, 1978.
[5] The definition of "entrepreneur" states:
| "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 |
« 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 |
| 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 ongoing participation in the management of the business or commercial venture. |
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;
|
The respondent did not argue that the definition precluded an applicant relying on an existing business to demonstrate the intention and ability to establish a business in Canada.
[6] In this case, the visa officer did not provide an affidavit attesting to the truth of what was recorded in the CAIPS notes as having been said at the interview. In Chou v. Canada (Minister of Citizenship and Immigration) (2001), 285 N.R. 188 (F.C.A.), Linden J.A. found, at paragraph 3, that in the absence of an affidavit from the visa officer, the CAIPS notes are not evidence of what took place during the interview. That is the situation here.
[7] The question then is, on the admissible portions of the record before me, whether the visa officer ignored the applicant's existing business in assessing whether she had the intention and ability to establish a business in Canada. The evidence is that the business has been in existence since 1996. It generates gross revenues from $2.8 to $7 million per year. It was profitable in one year, incurred a small loss in another and essentially broke even in a third. On their face, these facts would seem to satisfy the requirement that the applicant demonstrate an intention to establish a business in Canada.
[8] As to whether the facts show that the applicant has the ability to establish a business in Canada, it is relevant whether the business is or is not viable, see for example Chiu v.Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 281 at paragraph 8 (F.C.T.D.). If the business were brand new or if the visa officer was concerned about the viability of the existing business, I would accept that the mere existence of the business might not be taken as evidence of an ability to establish a business in Canada as required by the definition of entrepreneur. The business here was established in 1996 and is not new. Nor do I see in the visa officer's decision letter or other admissible evidence, anything indicating that the visa officer was concentrating on future plans because, in her view, the business was not presently viable.
[9] In the absence of such evidence, I think it was unreasonable for the visa officer to have concluded that the applicant lacked the ability to establish a business in Canada because, according to the visa officer, the applicant had not done any research into possible new clients in order to expand and improve the business.
[10] As the applicant pointed out in argument, most entrepreneurial applicants have not established a business in Canada when their visa application is considered. In such cases the visa officer quite properly must carefully consider an applicant's future plans. However, where an entrepreneurial applicant has a business that is already a going concern in Canada and that, on the evidence, appears viable, the existence of that business should normally be of considerable weight in the assessment performed by the visa officer.
[11] From my consideration of the record it appears the visa officer gave the applicant's existing business virtually no weight in her assessment of the applicant's ability to establish a business in Canada and thereby committed a reviewable error.
[12] I would allow the judicial review and remit the matter to a different visa officer for redetermination to be based on such up-to-date information as the applicant may provide or the visa officer may request.
"Marshall Rothstein"
Judge
Ottawa, Ontario
August 19, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-25-01
STYLE OF CAUSE: TATIANA BONDAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FRIDAY, AUGUST 9, 2002
REASONS FOR ORDER BY: ROTHSTEIN J.
APPEARANCES BY: Mr. Tim Farrell
For the Applicant
Ms. Neeta Logsetty
For the Respondent
SOLICITORS OF RECORD: Blaney McMurtry LLP
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20020819
Docket: IMM-25-01
BETWEEN:
TATIANA BONDAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER