Date: 19991012
Docket: IMM-4565-98
Ottawa, Ontario, the 12th day of October 1999
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
BETWEEN:
MUSTAFA SEBAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is dismissed.
Karen R. Sharlow
Judge
Date: 19991012
Docket: IMM-4565-98
BETWEEN:
MUSTAFA SEBAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.:
[1] The applicant Mustafa Sebai is a citizen of Libya. He applied for permanent residence in Canada as an entrepreneur. After an interview with a visa officer in Paris, his application was denied on two grounds. One was based on the definition of "entrepreneur" in section 2(1) of the Immigration Regulations. The other was based on paragraph 19(2)(a.1)(ii) of the Immigration Act. Counsel for the Minister concedes that the visa officer was wrong on the second ground, but she defends the visa officer's decision on the first ground.
Definition of "entrepreneur"
[2] The definition of "entrepreneur" reads as follows:
| [...] "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 dependents, and |
| (b) who intends and has the ability to provide active and ongoing participation in the management of the business or commercial venture. |
[3] In determining whether Mr. Sebai's application for permanent residence should be granted, the visa officer was required to consider whether she was satisfied that Mr. Sebai met this description.
[4] Mr. Sebai was trained in Libya as a lawyer. At the time of his application for permanent residence, he had been an employee of the government of Libya for approximately 35 years and was planning his retirement from that work. From 1977 until 1988 he was General Vice Manager and Secretary of the National Company of Bran and Derivatives. From 1988 until 1996 he was Cabinet Manager of the Secretary's office for the People's Committee for Industry and Metals. Both of these were very senior government positions.
[5] Documents in the record indicate that Mr. Sebai, in his capacity as a government official, signed contracts that appear to be ordinary commercial contracts for the sale of commodities. However, his role in the negotiation of these contracts was unexplained. There was also evidence that Mr. Sebai had investments in Libyan businesses, but there was no evidence that he had an active role in the management of those businesses.
[6] In addition, Mr. Sebai told the visa officer that he had earned commissions by providing business advice to Italian companies selling grain products to Libya. However, the nature of that advice was not explained. The visa officer asked for documentary evidence of his alleged business advice. Mr. Sebai provided a letter from Italgrani s.p.a. as evidence that he had a "consulting accord" with that company, and that he "is cooperating with our company since more than fifteen years acting in the milling, grains and past production achieving very positive goals for these fields." He also provided an "Agreement of Cooperation" dated May 4, 1985 between Mr. Sebai and Messr. Berga s.p.a., which states in part:
| 1) Mr. Mustafa Sebai, undertakes to give his cooperation and assistance for the award of the Contract. Such cooperation will be relative for overcoming any difficulties connected with the export, expedition, erection and start up with performance test of the line. |
| 2) In compensation of such cooperation and assistance Messrs. Berga s.p.a., agree as from now, to pay Mr. Mustafa Sebai, a net commission of 5% (five percent) of the contract amount [...]. |
[7] Mr. Sebai told the visa officer, apparently to explain the lack of supporting documents from Libya, that these activities are illegal in Libya. The visa officer believed that to be the case, as she was entitled to do. She was also entitled to infer from Mr. Sebai's evidence that what he called giving "business advice" actually was influence peddling. More about that later.
[8] Mr. Sebai indicated to the visa officer that as a resident of Canada, he intended to provide business advice to a Canadian company that he would own with an Italian associate. His plan was for the Canadian company to develop markets for grain products in the Mediterranean, Brazil and North Africa, using Mr. Sebai's knowledge of market requirements, business practices and contacts.
[9] In the interview, however, Mr. Sebai was unable to provide particulars of the ownership, activities or finances of those companies. He did not know where their offices were. He did not possess elementary knowledge of the Canadian grain business. He later submitted information clarifying that he owned all of the shares of one company and 50% of the shares of the other.
[10] Counsel for Mr. Sebai argues that the visa officer's conclusion that Mr. Sebai did not meet the definition of "entrepreneur" is perverse and unreasonable. I do not agree.
[11] The documents provided by Mr. Sebai, and the visa officer's account of the interview, support the conclusion that his government and business experience did not establish his ability or intention to participate in the management of the two Canadian companies. The visa officer was not compelled to reach a conclusion favouring the applicant, merely because of his legal training and government experience, even if his government experience was at a very senior level and touched upon the buying of commodities in an apparently commercial fashion.
Paragraph 19(2)(a.1)(ii) of the Immigration Act
[12] Counsel for Mr. Sebai also challenges the visa officer's decision because of her erroneous consideration of paragraph 19(2)(a.1)(ii) of the Immigration Act. The relevant part of that provision reads as follows:
| 19(2). No immigrant [...] shall be granted admission if the immigrant [...] is a member of any of the following classes: |
| [...] |
| (a.1) persons who there are reasonable grounds to believe [...] |
| (ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years [...]. |
[13] The visa officer concluded that the acts of Mr. Sebai that he characterized as "business advice" to Italian exporters constituted an offence that was the equivalent of the offence described in section 121(1)(c) of the Criminal Code:
| Everyone commits an offence who [...] being an official or employee of the government, demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind [...] unless he has the consent in writing of the head of the branch or government that employs him or of which he is an official, the proof of which lies upon him. |
[14] The visa officer did not consider whether there is any Libyan law that is equivalent to section 121(1)(c) of the Criminal Code. Counsel for Mr. Sebai argued that this was an error of law. More importantly, however, the visa officer did not give Mr. Sebai an opportunity to respond to her concern that paragraph 19(2)(a.1)(ii) might apply to him. Counsel for Mr. Sebai argued that this was a breach of the visa officer's duty of procedural fairness, and I agree. It bears repeating that counsel for the Minister conceded that the visa officer's decision cannot be defended on the basis of paragraph 19(2)(a.1)(ii).
[15] Counsel for Mr. Sebai argues that the breach of the visa officer's duty of procedural fairness on this aspect of her reasons renders the decision void. In support of this argument, he relies on Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643. In that case, the director of a penitentiary refused to discontinue the administrative segregation of two prisoners. He did not give the prisoners a hearing before making his decision. The Court held that the director's failure to give the prisoners a hearing before making his decision was a breach of the duty of procedural fairness that rendered the prisoners' continued segregation unlawful.
[16] A breach of the duty of procedural fairness or natural justice normally vitiates the decision, but there are exceptions. In Mobil Oil Canada, Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, the Supreme Court of Canada recognized that a breach of natural justice may be disregarded if "the demerits of the claim are such that it would in any case be hopeless."1 Following that decision, the Federal Court of Appeal has said that a decision need not be quashed for such a breach, if no purpose would be served in remitting the matter for reconsideration: Yassine v. The Minister of Employment and Immigration (1994), 172 N.R. 308 (F.C.A.).
[17] The visa officer's analysis, as set out in her decision letter, was divided into two parts. The first part deals with the merits of Mr. Sebai's claim to be on "entrepreneur" within the statutory definition. The second part deals with the application of paragraph 19(2)(a.i)(ii). I agree with counsel for the Minister that the visa officer had two independent reasons for the her decision. Logically, the fact that there was no reviewable error with respect to her decision on the merits should be sufficient to permit the decision to stand.
[18] Counsel for Mr. Sebai argues that the exception recognized in Yassine should not apply in this case. As I understand it, the premise of his argument is that once the visa officer concluded that Mr. Sebai was inadmissible because of paragraph 19(2)(a.i)(ii), the "bad taste" of that conclusion must have coloured her assessment of the merits of Mr. Sebai's claim to be an entrepreneur. The record does not support any such premise.
[19] As indicated above, Mr. Sebai told the visa officer that the activity he had characterized as "business advice" was illegal under Libyan law. The visa officer believed that to be so, as she was entitled to do. That belief led the visa officer to doubt whether Mr. Sebai's "business advice" really was business advice and to conclude that it was not. As indicated above, that factual conclusion, combined with the absence of evidence of other business experience and the failure of Mr. Sebai to respond to some rather elementary questions about business matters, justified the visa officer's determination that Mr. Sebai did not meet the definition of "entrepreneur," and therefore also justified her decision to refuse Mr. Sebai's application.
[20] That same factual conclusion also led the visa officer to consider whether this was a case for the application of paragraph 19(2)(a.i)(ii). Given the material before her, she was certainly correct to put her mind to that question. She erred only when she failed to give Mr. Sebai an opportunity to address the possibility that his admittedly illegal activities might cause paragraph 19(2)(a.i)(ii) to apply. However, that error had nothing to do with her factual conclusion that Mr. Sebai had engaged in illegal activities. As explained above, that factual conclusion was supported by the evidence that Mr. Sebai himself provided.
[21] The application for judicial review is dismissed. No certified question has been suggested. As no costs were sought, none are awarded.
Judge
Ottawa, Ontario
October 12, 1999
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