Date: 20020621
Docket: IMM-4565-00
Neutral citation: 2002 FCT 702
BETWEEN:
VINOD MADANLAL TALWAR,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
LAYDEN-STEVENSON J.
- Vinod Madanlal Talwar, in his application for judicial review, requests that the July 20, 2000 decision of a visa officer at the Canadian Consulate in New York, denying his application for permanent residence in Canada, be quashed and that the respondent be directed to process the application in accordance with the provisions of the Immigration Act, R.S.C. 1985, c. I-2 and the Immigration Regulations, 1978, SOR/78-172.
[2] The applicant is a citizen of India. On October 4, 1999, he applied for permanent residence in Canada as an entrepreneur who would establish a business in Canada. The applicant was interviewed by the visa officer on July 19, 2000 and by correspondence dated July 20, 2000, the applicant's application for permanent residence was refused. The visa officer determined that the applicant was not an entrepreneur as defined in the Immigration Regulations, 1978. The refusal letter indicates that the officer was not satisfied that the applicant had the ability to manage a profitable business in Canada that would make a significant contribution to the Canadian economy, was not satisfied that the applicant had demonstrated he was able to take an active and on-going participation in the management of a profitable business, was not satisfied that he had the ability to successfully establish a business in Canada as an entrepreneur and was not satisfied that he had the ability to successfully establish and support his family in Canada. Consequently, he did not come within the definition of "entrepreneur" and his application was refused.
[3] The applicant alleges three errors by the visa officer. First, it is submitted that the visa officer breached procedural fairness by relying on extrinsic evidence without advising the applicant. In the visa officer's affidavit, she refers to the applicant's liquid assets invested in Indian companies and notes that the Reserve Bank of India restricts emigrants' exchange of rupees to $3,000 U.S. The visa officer, in her extensive review of the applicant's finances, notes that since the applicant did not have any money available to him outside of the country, this amount would be insufficient for the establishment of his family or the establishment of a business in Canada. The applicant argues that by relying on the restriction without providing him an opportunity to respond, the visa officer breached the duty of procedural fairness. The respondent says that the restriction is public information and therefore does not constitute extrinsic evidence. Moreover, this was but one factor of many that the visa officer considered in reaching her decision.
[4] The purpose of ensuring that extrinsic evidence is disclosed is to enable an applicant an opportunity to respond. I fail to see how the applicant could have responded to the above-mentioned restriction when he would be powerless to change it. The applicant's counsel was not able to suggest any possible response that might be available to the applicant. Counsel did suggest the possibility that the visa officer could be mistaken. However, this would be a matter appropriately addressed on cross-examination and the visa officer was not cross-examined. In any event, I agree with the respondent that the decision did not rest on this factor. The applicant has advanced no argument to support the position that the decision would have been different had this fact not been considered. Even if there was a breach of procedural fairness, if it had no impact on the decision, the Court will not intervene: Mobil Oil v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308. Therefore, the applicant cannot succeed on this ground.
[5] The second allegation of error is that the visa officer misinterpreted the definition of "entrepreneur" by requiring that the applicant have the ability to manage a "profitable" business in Canada. The applicant, in this respect, relies upon Liu v. Canada (Minister of Citizenship and Immigration), [2000] I.A.D.D. No. 197. The Liu case does not assist the applicant because it related to a business which had already been established in Canada which is not the situation here. Importing an element of profitability into an assessment of an applicant as an entrepreneur does not constitute reviewable error: Cho v. Canada (Minister of Citizenship and Immigration) (2002), 191 F.T.R. 281; Cho v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 975 (T.D.); Hui v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 60; Wang v. Canada (Minister of Citizenship and Immigration) (2002), 190 F.T.R. 142. The applicant fails on this ground.
[6] The third and final argument is that the visa officer miscalculated the net loss for the 1998-99 fiscal year for one of the applicant's companies. The applicant is correct that the amount of the loss was not properly calculated. He argues that the fact that the words "net loss" were underlined in the visa officer's affidavit constitutes evidence that this fact was considered to be significant and therefore impacted on the decision. I am not persuaded that the visa officer underlined "net loss" for the purpose suggested or that this factor was significant. The applicant had operated his business for eighteen years. He achieved a modest profit in each year except for 1998-99. The underlining merely distinguishes the year of the loss from the other years wherein there was some profit. In view of the comprehensive, if not exhaustive, review undertaken by the visa officer in her consideration of the applicant's financial information, the net loss for 1998-99 was simply one factor of many.
[7] The visa officer provided detailed evidence in her affidavit as to the basis upon which she arrived at her decision. The refusal letter sets out, in clear and unmistakable terms, the reasons for the denial of the application. The conclusion that the visa officer reached was reasonably open to her on the evidence before her and there is no basis for this Court to intervene. Accordingly, the application for judicial review is dismissed.
[8] Counsel did not suggest a serious question of general importance therefore no question is certified under subsection 83(1) of the Immigration Act.
___________________________________
Judge
Ottawa, Ontario
June 21, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4565-00
STYLE OF CAUSE: Vinod Madanlal Talwar v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 20, 2002
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
DATED: June 21, 2002
APPEARANCES:
Mr. M. Max Chaudharyfor the Applicant
Mr. John Loncarfor the Respondent
SOLICITORS ON THE RECORD:
Chaudhary Law Officefor the Applicant
North York, Ontario
Mr. Morris Rosenbergfor the Respondent
Deputy Attorney General of Canada