Date: 20011031
Docket: IMM-4796-00
Neutral Citation: 2001 FCT 1180
Toronto, Ontario, Wednesday, the 31st day of October, 2001
PRESENT: The Honourable Mr. Justice John A. O'Keefe
BETWEEN:
MOHAMMAD BLORIAN KASHI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision made by a visa officer on August 17, 2000 wherein the applicant, his wife, adult son and accompanying dependant were denied their application for permanent residence under the investor immigrant category.
[2] The applicant seeks judicial review of the above decision. In particular, the applicant seeks an order of certiorari setting aside the above decision and directing that the application be reassessed by a different visa officer. The applicant further seeks the costs of this application.
Background Facts
[3] Mohammad Blorian Kashi (the "applicant") is a citizen of the Islamic Republic of Iran. The applicant applied (for himself, his wife, his adult son and his dependant son) in August, 1998 to the consulate general in Hong Kong for permanent residence in Canada under the investor category.
[4] The applicant was a licensed medical practitioner in the field of gynaecology prior to the Islamic revolution in Iran. Following the Islamic revolution, the applicant has not worked as a gynaecologist, providing the reason that doctors are no longer allowed to treat patients of the opposite gender. Having ceased practising medicine, in 1988 the applicant joined five partners to establish a medical polyclinic. The applicant was the principal investor, holding a 40% share. Each of the partners, with the exception of the applicant, established a medical clinic within the framework of the polyclinic. One issue raised by the visa application is whether the applicant's responsibilities at the polyclinic satisfies the requirement that the applicant has successfully operated, controlled or directed a business.
[5] The applicant also stated that he had been involved in other business ventures, namely buying and selling carpets and gold and being involved in the agricultural business. The only documentary proof the applicant provided for these supplementary business ventures was a photocopy of a land title document.
Decision of the Visa Officer
[6] Following the reasons provided in the CAIPS notes and her supporting affidavit, the visa officer concluded that the applicant failed to satisfy the requirement that the applicant has successfully operated, controlled or directed a business. The applicant was thus rejected as an applicant in the investor category for failing to meet part (a) of the investor definition.
[7] In addition, the visa officer was not satisfied that the applicant met part (c) of the investor definition as at the time of the interview, he could not demonstrate that he had accumulated a net worth of $500,000 through his own endeavours.
[8] The decision of the visa officer was formally communicated to the applicant by letter dated August 17, 2000.
[9] Issues
1. Did the visa officer make an error of fact when she determined that the applicant had not been able to demonstrate that he had successfully operated, controlled or directed a business?
2. Did the visa officer err in determining that the applicant did not satisfy the definition of investor contained in subsection 2(1) of the Immigration Regulations SOR/78-172 in that he did not establish that he had a net worth accumulated through his own endeavours, of at least $500,000 (subsection (c)(i) of the definition of investor)?
Applicable Law
[10] At all relevant times prior to April 1, 1999, the definition of "investor" appearing in the Immigration Regulations, 1978 under subsection 2(1) was:
| "investor" means an immigrant who (a) has successfully operated, controlled or directed a business,(b) has made a minimum investment since the date of the investor's application for an immigrant visa as an investor, and (c) has a net worth, accumulated by their own endeavours, (i) where the immigrant makes an investment referred to in subparagraph (a)(i) or (ii), (b)(i), (c)(i) or (ii), (d)(i) or (ii) or (e)(i) or (ii) of the definition "minimum investment", of at least $500,000, or (ii) where the immigrant makes an investment referred to in subparagraph (a)(iii), (b)(ii), (c)(iii), (d)(iii) or (e)(iii) of the definition "minimum investment", of at least $700,000; |
« investisseur » Immigrant qui satisfait aux critères suivants: a) il a exploité, contrôlé ou dirigé avec succès une entreprise; b) il a fait un placement minimal depuis la date de sa demande de visa d'immigrant à titre d'investisseur; c) il a accumuleé par ses propres efforts: (i) un avoir net d'au moins 500 000 $, dans le cas d'un immigrant qui fair un placement visé aux sous-alinéas a)(i) ou (ii), b)(i), c)(i) ou (ii), d)(i) ou (ii) ou e)(i) ou (ii) de la définition de « placement minimal » , (ii) un avoir net d'au moins 700 000 $, dans le cas d'un immigrant qui fait un placement visé aux sous-alinéas a)(iii), b)(ii), c)(iii), d)(iii) ou e)(iii) de la definition de « placement minimal » . |
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[11] Regulatory amendments to the immigrant investor program came into force on April 1, 1999. The amended definition in subsection 2(1) of the Immigration Regulations, supra became:
| "investor" means an immigrant who (a) has successfully operated, controlled or directed a business, (b) indicates to the Minister, in writing, that they intend to make an investment or have made an investment, and (c) has a net worth, accumulated by their own endeavours, of at least $800,000; |
« investisseur » Immigrant qui répond aux critères suivants: a) il a exploité, contrôlé ou dirigé avec succès une entreprise; b) il a indiqué par écrit au ministre qu'il a fait ou a l'intention de faire un placement; c) il possède un avoir net d'au moins 800 000 $, accumulé par ses propres efforts. |
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[12] The transition measures for applications received before April 1, 1999 are found in section 2.01 of the Immigration Regulations, supra as follows:
| 2.01 If an immigrant, before April 1, 1999, has applied for an immigrant visa as an investor and has signed any document referred to in clause 1(v)(iii)(A) of Schedule X, as that Schedule read immediately before that date, or, in the case of an investor in a province, has either applied for a selection certificate under section 3.1 of An Act respecting immigration to Québec, R.S.Q., c. I-0.2, or applied for an immigrant visa as an investor, and signed an investment agreement in accordance with the law of the province, the relevant provisions of these Regulations respecting an applicant for an immigrant visa as investor, an approved business, an investor, an investor in a province, a fund manager, an eligible business, an approved fund, a fund, an escrow agent, a privately administered venture capital fund or a government-administered venture capital fund continue to apply as they read immediately before April 1, 1999 to all persons governed by their application before that date. |
2.01 Dans le cas où un immigrant, avant le 1er avril 1999, a présenté une demande de visa d'immigrant à titre d'investisseur et a signé un document visé à la division 1v)(iii)(A) de l'annexe X, dans sa version antérieure à cette date, ou, s'il s'agit d'un investisseur d'une province, soit a présenté une demande de certificat de sélection aux termes de l'article 3.1 de la Loi sur l'immigration au Québec, L.R.Q., ch. I-0.2, soit a présenté une demande de visa d'immigrant à titre d'investisseur, et a signé une convention d'investissement selon les lois de la province, les dispositions du présent règlement applicables aux demandeurs de visa d'immigrant à titre d'investisseur, aux investisseurs, aux investisseurs d'une province, aux gestionnaires, aux dépositaires, aux entreprises admissibles, aux entreprises agréées, aux fonds, aux fonds agréés, aux fonds de capital-risque administrés par le secteur privé et aux fonds de capital-risque administrés par un gouvernement continuent de s'appliquer, dans leur version antérieure au 1er avril 1999, à toute personne qui, avant cette date, était régie par elles. |
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[13] I propose to deal with Issue 2 first.
Did the visa officer err in determining that the applicant did not satisfy the definition of investor contained in subsection 2(1) of the Immigration Regulations SOR/78-172 in that he did not establish that he had a net worth accumulated through his own endeavours, of at least $500,000 (subsection (c)(i) of the definition of investor)?
An applicant must meet the requirements of subsections (a), (b) and (c) of the definition of investor in order to be classified as an "investor". The visa officer's decision reads in part as follows:
I have determined that you do not meet the definition of investor for the following reasons.
You do not meet part (a) of the investor definition as you have been unable to demonstrate that you have successfully operated, controlled or directed a business.
In addition, there is some question as to whether you have met the investor requirement that you have a net worth, accumulated through your own endeavours, of at least C$500,000. You have provided some documents to prove the origin of your funds. These documents are inconclusive and at this point you have not demonstrated that you have accumulated C$500,000 through your own endeavours.
The applicant gave a summary of his recollection of the balance of the questions asked of him by the visa officer and paragraph 9 in part reads as follows:
Q. How much money are you planning to transfer to Canada?
A. I will transfer all of my assets which are valued around Cdn $4000,000 [sic] to Cdn $500,000.
[14] Paragraphs 15 and 16 of the visa officer's affidavit states:
I next turned my attention to exploring whether the Applicant satisfied part (c) of the Investor definition; that is, whether he had a minimum net worth, accumulated by his own endeavors, of at least $500,000 Cdn. On the day of his intereview, the Applicant provided two bank statements (separate accounts) showing deposits amounting to approximately $340,000 Cdn. He confirmed that these accounts had been opened very recently, to demonstrate funds for immigration selection purposes. He further stated that the funds would be withdrawn, and accounts closed, following the interview. He stated that these funds constituted his working capital, for buying and selling carpets and gold. The Applicant confirmed that a bank accounted [sic] listed on his application had been closed, and that a fixed deposit account list on his application no longer had any funds in it.
In addition to monies on deposit, the Applicant stated that he owned automobiles, properties, gold, carpets and a share of the polyclinic. He estimated his Personal Net Worth to be approximately $400,000 Cdn. The accuracy of this estimate could not be established at the interview as there were no ownership (other than polyclinic) or valuation documents submitted. The Applicant stated that he had accumulated his original assets through his medical practice during the period 1980-88. He stated that he would be unable to provide documentation to verify the amount of assets he accumulated during that time. In response to a direction question, the Applicant advised that he had no assets, investments or cash outside of Iran.
[15] The visa officer's CAIPS notes state in part as follows:
. . . I asked subj to estimate his PNW; he estimated CDN$400,000 . . .
[16] The visa officer, in her letter to the applicant, referred to the applicant as not meeting the definition of investor "for the following reasons". Based on the above facts, the visa officer found that the applicant had not demonstrated that he had accumulated C$500,000 through his own endeavours. It is a requirement of subparagraph (c)(i) of the definition of investor that the applicant establish that he had accumulated the amount of $500,000. I am of the view that the visa officer's finding that the applicant had not established that he had met paragraph (c)(i) of the definition of investor was a reasonable decision and thus made no error in this respect.
[17] Since the applicant must satisfy subsections (a), (b) and (c) of the definition of investor and in the present case, since the applicant has not established that he satisfied subsection (c), he does not satisfy the definition of "investor" (see Kwok v. Canada (Minister of Citizenship and Immigration) (1997), 138 F.T.R. 221 (F.C.T.D.)). As a result, his application must fail and it is not necessary that I address the other issue raised by the application.
[18] The application for judicial review is dismissed.
[19] The solicitor for the applicant proposed the following question for certification pursuant to subsection 83(1) of the Immigration Act, supra:
The definition of "investor" in section 2(1) of the Immigration Regulations imports a requirement that an immigrant "has successfully operated, controlled or directed a business". For the purpose of interpreting the word "directed", is membership on a Board of Directors sufficient? If not, just what does it mean for one to have "directed" a business?
[20] The respondent opposed the certification of the question that was proposed.
[21] I am not prepared to certify the proposed question.
ORDER
IT IS ORDERED THAT:
1. The application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
October 31, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4796-00
STYLE OF CAUSE: MOHAMMAD BLORIAN KASHI
- and -
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: TUESDAY, OCTOBER 9, 2001
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: WEDNESDAY, OCTOBER 31, 2001
APPEARANCES:
Edward Rice
FOR THE APPLICANT
Aliyah Rahaman
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Edward Rice
301 - 63 Albert Street
Winnipeg, Manitoba R3B 1G4
FOR THE APPLICANT
Department of Justice
Winnipeg Regional Office
301 - 310 Broadway
Winnipeg, Manitoba R3C 0S6
FOR THE RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20011031
Docket: IMM-4796-00
BETWEEN:
MOHAMMAD BLORIAN KASHI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER