Date: 20010321
Docket: IMM-109-00
Neutral Citation: 2001 FCT 212
BETWEEN:
SHIVENDER SEHGAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] These reasons arise out of an application for judicial review of a decision of a visa officer at the Canadian Consulate General in New York wherein the visa officer rejected the applicant's application for permanent residence in Canada as an entrepreneur. The decision under review is dated the 22nd of November, 1999.
[2] The visa officer, in her letter advising the applicant of her decision, wrote:
I am not convinced that you have the ability to establish a successful business venture in Canada. You are not an entrepreneur as defined in the Canadian Immigration Regulations. Therefore, your application for permanent residence is refused.
[3] The definition "entrepreneur" in subsection 2(1) of the Immigration Regulations,1978[1] 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 dependants, and
(b) who intends and has the ability to provide active and on-going participation in the management of the business or commercial venture;
« 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;
[4] Counsel for the applicant urged that the visa officer erred in a reviewable manner in three respects, namely:
1) by taking into account irrelevant considerations;
2) by failing to properly consider relevant portions of the respondent's "Overseas Processing Manual"; and
3) by denying procedural fairness to the applicant in the consideration of his application.
I am satisfied that the first issue raised on behalf of the applicant is determinative against him, that the second issue is not central to the visa officer's decision and that there was no reviewable error through a denial of procedural fairness. In the result, this application for judicial review will be dismissed.
[5] The applicant's employment record dating from June of 1986 discloses two periods in which he was employed first, as an administrative officer, and secondly as a manager, office administration. These periods of employment overlapped with periods when the applicant was a partner in three businesses. His first partnership enterprise terminated in March of 1997. The second and third commenced, respectively, in October, 1995 and March, 1998 and continued to the date of the decision here under review. That the applicant's participation in the management of the partnership that terminated in March of 1997 did not provide evidence of his ability to provide active and ongoing participation in the management of a business or commercial venture in Canada was essentially not in dispute before me. His participation in the management of the last of the three partnerships in which he was involved simply did not satisfy the visa officer that he had the ability to provide active and ongoing participation in the management of a business or commercial venture in Canada because the material before the visa officer with respect to that partnership simply demonstrated that there was no established track-record of profitability.
[6] The material before the visa officer would appear to have established a track-record of profitability in respect of the partnership established in October of 1995 and that was ongoing at the date of the decision under review. That being said, the applicant and the visa officer had very different perceptions of the management role of the applicant in relation to that partnership.
[7] The applicant attested at paragraph 19 of his affidavit:
I told her [the visa officer] "I spend one hour at the Universal Plywood store in the evening time. My manager Basant Singh and assistant manager Suresh Kumar were looking after the store for me. I went to review the books, Cheque [sic] the accounting, look after the receipts and the cash, as well as plan for the next day."
By contrast, the visa officer attests at paragraph 9 of her affidavit:
He confirmed that he just went to this store [the Universal Plywood store] for half an hour every evening to check the books.
The visa officer's position is confirmed by her CAIPS notes entered on the date of her interview with the applicant which include the following notation:
For Universal Plywood he confirms that he did not work only went in the evenings to check the books for 1 / 2 hr.
Says Universal is family business, wife, mother work there, so he does not need to go there.
Says there is a manager for that business, Mr. Singh.
There is also an assistant mgr.
...
He [the applicant] does not have any active participation in this business [the Universal Plywood store]. Business is in hands of the mgr and asst mgr that they have in the store. Brother looks after the purchasing etc.
I prefer the visa officer's assessment of what transpired between she and the applicant at interview in this regard to that of the applicant. The visa officer's recollection reflected in her affidavit is confirmed by her CAIPS notes made on the date of interview. By contrast, the applicant's affidavit was sworn some months after the interview took place and reflects no indication that it was made on the basis of notes prepared on the date of the interview.
[8] On the basis of the material before her and her notes of interview, particularly as the material and those notes reflect the applicant's experience in running a business, the visa officer wrote in her decision letter:
...I am of the opinion that you do not have the ability to run a profitable business.
...
...you have not provided proof that you have ever managed any profitable business and you have not convinced me that you are a business person with business expertise.
...
Taking into consideration that you have not been able to convince me that you have run a profitable business, nor that you have the ability to do so, I do not believe that you have the ability to manage a profitable business in Canada nor provide ongoing participating in a business in Canada. I do not consider that your business venture is a viable business, as you have not demonstrated that you have ever run a profitable business. I do not see that you would make a "significant contribution to the economy" of Canada as you have failed to provide proof that you ever ran a profitable business nor that you have the ability to do so. Furthermore, it is not apparent to me from the material available to me that you have the ability to successfully manage a profitable business in Canada. At interview, you did not convince me that you have the ability to provide active participation in the management of the business in Canada. Furthermore, you were unable to identify any factor which would enable me to conclude that you would make a significant contribution to the economy of Canada nor provide employment opportunities for residents of Canada.
[9] I am satisfied that the foregoing conclusions were reasonably open to the visa officer and constituted the principle basis for her decision to reject the applicant's application in the entrepreneur category. None of the foregoing reflects an importation of irrelevant considerations into the visa officer's decision.
[10] I find no basis on which I might reach a conclusion that the visa officer failed to consider relevant portions of the respondent's Overseas Processing Manual. Further, that manual does not have the force of law. The visa officer's decision was made against the definition "entrepreneur" and as such was made against the appropriate criteria.
[11] I turn briefly to the final issue, that of procedural fairness. In the visa officer's CAIPS notes made on the day following her interview with the applicant, the visa officer indicates that she reviewed the file that day. She notes:
He [the applicant] has not provided nor indicated that he has had active participation in any business in India, he says that he does in this last business that he purchased with 3 other friends in 98, but the 4 of them manage business, not credible, does not have any knowledge of business transactions. ...
...
I do not believethat he plans to have active participation in business in CDA... . [emphasis added]
[12] Counsel for the applicant urged that the visa officer erred in a reviewable manner in failing to put to the applicant her view regarding his credibility and not providing him with an opportunity to respond to that concern. I note that the references to credibility appear in CAIPS notes made the day after the interview with the applicant. I regard them as nothing more than an unfortunate choice of words. They would appear to me to do nothing more than reflect the visa officer's views reflected in her decision letter to the effect that the applicant had simply failed to convince her of his business management experience and expertise. I find no reviewable error on the part of the visa officer in this regard.
[13] In the result, as earlier indicated, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. No question will be certified.
___________________________
J.F.C.C.
Ottawa, Ontario
March 21, 2001