Date: 20021002
Docket: IMM-225-02
Neutral Citation: 2002 FCT 1017
Between:
THARWAT IBRAHIM, c/o DALMA Import Expert Ltd,
390 Notre-Dame West, Suite 400,
Montreal, P.Q. H2Y 1T9,
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, c/o Justice Department,
Complexe Guy Favreau, 200 west René-Lévesque,
East Tower, 5th Floor, Montreal (Quebec), H2Z 1X4
Respondent
REASONS FOR ORDER
PINARD J.:
This is an application for judicial review with respect to the decision of Barbara Stewart, a visa officer (the "officer") at the Canadian High Commission in London, England, dated December 13, 2001, determining that the applicant did not meet the requirements for immigration to Canada as an entrepreneur.
The applicant is a citizen of Egypt. His application in the entrepreneur category was denied as he did not meet the requirements for immigration to Canada. In her decision, the officer stated:
I have now completed the assessment of your application and regret to inform you that I have determined that you do not meet the requirements for immigration to Canada as an entrepreneur.
[. . .]
You do not meet this definition because of the scope of your business and the sophistication of your business does not translate into an ability to run a business in Canada.
Further, I am not satisfied as to the provision of section 9(4) of the Act. . . .
You therefore come within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act and your application has been refused.
In Chiu Chee To v. Minister of Employment and Immigration (May 22, 1996), A-172-93, the Federal Court of Appeal set out the standard of review for discretionary decisions by visa officers with respect to applications for immigration. This standard is the same as the one adopted by the Supreme Court of Canada in Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, where Mr. Justice McIntyre states at pages 7 to 8:
. . . It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. . . .
Subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172, defines "entrepreneur" thus:
"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 en mesure d'établir ou d'acheter au Canada une entreprise ou un commerce, ou d'y investir une somme importante, de façon àcontribuer 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 applicant argues that the officer erred by applying "wide ranging and sophisticated business experience" requirements rather than considerations of his ability to run a business in Canada. I do not agree with this assertion. After having examined the facts, the evidence and the pertinent legislation surrounding this case, I feel the officer was entitled to examine the applicant's business history and business success as relevant factors when considering whether he met the definition of "entrepreneur".
My colleague Justice Blais in Cho v. Canada (M.C.I.), [2000] F.C.J. No. 808 (QL), sets out the necessary criteria to be considered an entrepreneur:
[28] To be considered an entrepreneur, the applicant must satisfy the visa officer that he had both the intent and the ability to establish, purchase or make a substantial investment in a business. Intent can be shown by proving that the applicant prepared for his venture. Ability is often proven by past experience and sufficient funds.
(My emphasis.)
As well, Justice Layden-Stevenson recently confirmed in Talwar v. Minister of Citizenship and Immigration (June 21, 2002), IMM-4565-00, 2002 FCT 702, that importing an element of profitability into the assessment of an applicant as an entrepreneur does not constitute a reviewable error.
Based on the officer's Computer Assisted Immigration Processing System (CAIPS) notes as well as her affidavit, I find that the officer gave the applicant the opportunity to submit evidence supporting the fact that he had the ability to establish and run a business in Canada.
During the interview, the applicant stated that he had opened his own pharmacy in July of 1997. However, a document presented in evidence showed that the applicant's pharmacy had first been registered on August 23, 1998.
The applicant was also questioned with respect to accounting procedures for his business. After having reviewed the evidence submitted, the officer concluded that the applicant's accounting procedures "were not fully transparent"for the following reasons: (1) the applicant could not explain how he could show trade figures before his business opened; (2) the pharmacy business showed a profit of just over C$9,000.00; (3) the balance sheet did not indicate any income for the applicant and (4) the applicant's application showed a gross monthly salary of "[$]1300 US + profits" in 1997, which was not reflected in the balance sheet on file.
Finally, as evidenced by the officer's CAIPS notes, the applicant did not have much knowledge about business in Canada as he spoke in very general terms about making a deposit at the bank. The applicant also "thought" that there were taxes to pay in Canada.
It has also been confirmed that it is entirely within the jurisdiction of an officer to require that an applicant's business have the potential to be a viable business in Canada (Chiu v. Canada (M.C.I.), [1996] F.C.J. No. 1460 (T.D.) (QL), and more recently in Saadat v. Canada (M.C.I.), [2001] F.C.J. No. 39 (T.D.) (QL)).
Based on the foregoing, I feel that the officer's conclusion is reasonable and justified, taking into account the lack of fully transparent accounting procedures, the incomplete figures and the discrepancies in the evidence. Moreover, considering the applicant's prior business experience and the contradictory material he submitted in support of his application, it is my view that the officer properly concluded that the applicant did not have the ability to run a business in Canada.
While the refusal letter does not detail all the evidence considered by the officer, her CAIPS notes and her affidavit indicate that she did take into consideration all the factors raised by the applicant (Hui v. Canada (M.C.I.), [1997] F.C.J. No. 60 (T.D.) (QL)).
Having reviewed the evidence applicable to this file as well as the parties' submissions, I do not consider that the applicant has discharged his burden of proving his admissibility. Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
October 2, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-225-02
STYLE OF CAUSE: THARWAT IBRAHIM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 27, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: October 2, 2002
APPEARANCES:
Me Jean-François Bertrand FOR THE APPLICANT
Me Barbara Boily FOR THE RESPONDENT
SOLICITORS OF RECORD:
BERTRAND DESLAURIERS FOR THE APPLICANT
Montréal, Quebec
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario