Date: 20020307
Docket: IMM-2316-01
Neutral citation: 2002 FCT 262
OTTAWA, ONTARIO, MARCH 7, 2002
Present: THE ASSOCIATE CHIEF JUSTICE
BETWEEN:
HESSAMEDIN KHOSHDEL NIKKHO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] The applicant is an Iranian businessman with a significant net personal worth. He is a senior employee of a major tire manufacturer and has also pursued personal interests in the import and export of chemical products, activities which extend to several countries. The applicant challenges the visa officer's refusal of his application for permanent residence in Canada under the category of entrepreneur.
[2] Counsel raises two principal issues. In his view, the visa officer erred by misstating and misunderstanding the applicant's intentions concerning his residency in Canada. It is also argued that the visa officer placed undue importance on the extent of the applicant's market research in Canada.
[3] Concerning residency, the visa officer was of the view that the applicant intended to continue his business endeavours in Iran and the Middle East. She was not satisfied with his responses concerning his necessity to establish a new business in Canada which she understood to be merely an extension of his ongoing import-export activities. Her understanding appears to be consistent with this statement in the applicant's affidavit:
16. I already had business expertise in dealing with importing chemicals from other western countries and I was confident that the costs and standards in Canada will be similar; otherwise, Canada will not be competitive in its exports. As I am familiar with the market conditions in my home country, I am able to choose the chemicals or products which will be profitable for export to Iran.
[4] The visa officer explained her concerns in her affidavit:
8. The main focus of the interview was on the Applicant's intention for Canada. At the interview, the applicant stated that he intended to export chemical products from Canada to Iran and the Middle East, especially iron oxide pigments for the painting and ceramic industry. His Iranian company was to act as the importer and the major distributor.
9. As the company was already involved in similar activities, I asked the Applicant who the main providers of the pigments are now. The Applicant replied that initially these chemical products came from the U.K. and Switzerland and most recently from the People's Republic of China and Germany. As it seemed that the Iranian company was going to be operational and the Applicant was only coming to Canada to buy products and in fact finalize contracts, I asked him how much time and how much travel was involved currently. The Applicant replied that twice a year a person is travelling to the People's Republic of China and the other providers have representatives in Iran.
10. At the interview, I indicated my concern that a move of the Applicant's family to Canada was not required to establish export contracts and that most of his time would be spent in his home country and the Middle East distributing the products.
11. The Applicant told me that he was in fact applying for permanent residence in Canada for a better life for his family. The Applicant told me he was planning to hire 2 employees and would rely on the services of his brother and/or consultant to overcome the language barrier. I do not recall the Applicant telling me he would go back to Iran to visit but not to live there.
12. I found that the Applicant lacked the intent to provide active and ongoing participation in the management of the proposed business. I was not convinced that the Applicant himself was going to reside in Canada. He intended to continue his business in Iran and his dependents were to reside in Canada. The Applicant did not mention that he was going to sell his shares, he was acting as a buyer for his own Iranian company and was only planning to import chemicals to Iran for his own company. [Emphasis added]
[5] In her CAIPS notes, the visa officer stated she was not convinced that the applicant would settle in Canada permanently. The applicant argues that the visa officer's consideration of the residency issue was not relevant to her assessment of his qualifications as an "entrepreneur", as defined in the Regulations, and constitutes a reviewable error.
[6] In Malkine v. Canada (Minister of Citizenship and Immigration) (1999), 3 Imm. L.R. (3d) 122 (F.C.T.D.) at paragraph 22, Justice MacKay states that "...the visa officer did err in considering, in relation to the applicant's ability to provide active and ongoing participation in a business in Canada, her own assessment that he would not be able to permanently reside in Canada." For this reason and in view of another finding concerning the visa officer's breach of procedural fairness, Justice MacKay ordered that the matter be reconsidered.
[7] According to the CAIPS notes, the visa officer did raise her concern during the interview as to why the applicant was required to establish a new business in Canada when his Iranian company was to act as the importer and major distributor of Canadian products. The applicant's response was that in establishing this business in Canada he would be assuring a better life for his family in Canada.
[8] It would have been wrong for the visa officer to confuse the applicant's place of residence with his intention, within the meaning of the definition of "entrepreneur", to establish a business in Canada.
[9] However, the visa's officer's real concern was directed to the applicant's intention to establish a new business in Canada. It was her understanding that the applicant would continue to operate his Iranian business and that his intention was to identify Canadian exporters for that business. The applicant's responses did not satisfy the visa officer that he had any intention other than to find Canadian contacts for his Iranian import-export business. It was in the context of assessing his intention to establish a business in Canada while continuing his other operations in Iran that the issue of residence appears to have been raised.
[10] On my review of the record and in the circumstances of this case, I find no reviewable error in the visa officer's consideration of the applicant's place of residence as part of her assessment of his intention to establish a business in Canada.
[11] Similarly, I find no reviewable error in the visa officer's conclusion that he had not undertaken sufficient market research in Canada. The conflicting affidavit evidence concerning the applicant's apparently unanswered correspondence with one potential Canadian customer is not sufficient to challenge the visa officer's finding concerning the market research.
[12] Before the visa officer, the applicant had the burden of establishing his intention, not only his ability, to establish a business in Canada that will make a significant contribution to the economy. In this proceeding, the applicant also had the burden of establishing that the visa officer made a reviewable error. Where the affidavit evidence is contradictory, I have found no reason to favour the applicant's version over that of the visa officer in the absence of any cross-examination.
[13] For these reasons, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
March 7, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2316-01
STYLE OF CAUSE: HESSAMEDIN KHOSHDEL NIKKHO v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
DATE OF HEARING: FEBRUARY 07, 2002
REASONS FOR ORDER OF THE HONOURABLE ASSOCIATE CHIEF JUSTICE LUTFY
DATED: MARCH 07, 2002
APPEARANCES:
MR PETER LARLEE FOR THE APPLICANT
MS. KIM SHANE FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
LARLEE & ASSOCIATES FOR THE APPLICANT VANCOUVER, BRITISH COLUMBIA
MR. MORRIS ROSENBERG FOR THE RESPONDENT DEPUTY ATTORNEY GENERAL OF CANADA