Date: 20020212
Court File No.: IMM-1949-00
Neutral Citation: 2002 FCT 155
Ottawa, Ontario, this 12th day of February, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
GABRIELE WOHLMAYER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of a visa officer, Sara Trillo, dated March 7, 2000, which held that the applicant did not meet the requirements set out in the Immigration Act, R.S.C. 1985, c. I-2, and Immigration Regulations 1978, SOR/78-1/72, for admission to Canada as a permanent resident.
Facts
[2] The applicant, a citizen of Germany, owned and operated from 1984 to 1998 a farm in Ireland which included the breeding and sale of cattle and horses. The applicant seeks admission to Canada under the self-employed category. Subsection 2(1) of the Regulations sets out the definition of self-employed persons, it reads:
"Self-employed person" means an immigrant who intends and has the ability to establish or purchase a business in Canada that will create an employment opportunity for himself and will make a significant contribution to the economy or the cultural or artistic life of Canada;
« travailleur autonome » s'entend d'un immigrant qui a l'intention et qui est en mesure d'établir ou d'acheter une entreprise au Canada, de façon à créer un emploi pour lui-même et à contribuer de manière significative à la vie économique, culturelle ou artistique du Canada.
[3] The refusal letter sent to the applicant dated March 7, 2000, reads in part as follows:
After a careful and thorough review of your application, and as discussed with you at your interview, I regret to inform you that your application is refused since, in my opinion, your intended business in Canada would not make a significant contribution to the economy nor to the cultural or artistic life of Canada. Furthermore, based on all the information you have provided, I am not satisfied that you have sufficient business expertise nor the ability to be able to become successfully established in your proposed business venture.
I do not see from the documents that you have provided and from what you indicated at your interview that you have the ability to establish a business that would provide a job for yourself. You have been unable to substantiate the fact that you ever ran a successful business nor that you have the ability to do so. At interview, you had no supporting documents proving that you actually ran a profitable business. Furthermore, you provided proof that at present you own a farm in Canada with an outstanding mortgage of approximately $50,000 and you only have liquid assets of approximately $16,000, which I do not believe is sufficient to establish your farm in Canada, support yourself and your family and at the same time make the mortgage payments on the farm. In my opinion, you do not have the in depth experience, the skills, the expertise, the ability nor the funds to be able to establish successfully as self-employed
Due to all of this, I am not satisfied that you would be able to become successfully established in Canada in your proposed business venture. All the reasons for your refusal were explained to you at your interview..
[4] The applicant seeks to have this decision set aside on four grounds:
(1) The visa officer improperly fettered her discretion by requiring that the applicant demonstrate previous management of a profitable business;
(2) The visa officer violated the basic duty of fairness by failing to advise the applicant of and provide her with a meaningful opportunity to respond to the visa officer's concern that the applicant lacked sufficient funds to meet the short-term operating expenses of her proposed business;
(3) The visa officer violated the basic duty of fairness by failing to advise the applicant of the visa officer's belief that the proposed business would not make a significant contribution to Canada and provide her with a meaningful opportunity to respond; and
(4) The visa officer's conclusion that the proposed business would not make a significant contribution to Canada was wrong in law or otherwise perverse.
[5] The applicant contends that the visa officer wrongly assessed the applicant's ability to carry on a self-employed business in Canada by substituting a test of past profit making for the inquiry required by the Regulations and policy manual. The record shows that the applicant did not present any documents that indicated that she had any past business records, any management skills, any business abilities or that she had sufficient funds for her business venture in Canada. The visa officer found that the applicant had not provided any proof that she had ever run a profitable business and was unable to demonstrate that she had ever contributed to the success of any business. I am of the view that this reference to profitable business does not fetter the visa officer's discretion. By definition, a business venture to be successful must have some element of profitability. It is difficult to imagine how a business venture that is not profitable can possibly make a significant contribution to the economy of Canada as required in the Regulations. I therefore find that this reference to profitability, taken in the context in which it was made in assessing the applicant's ability to establish a business in Canada, was appropriate and that the visa officer did not fetter her discretion in so doing.
[6] The applicant argues that the visa officer breached a basic duty of fairness owed to the applicant by failing to provide the applicant with an opportunity to "disabuse" her impression that the applicant's business was insufficiently funded. The applicant further contends that a second critical matter on which the visa officer failed to provide the applicant with an adequate opportunity to respond was on the question of the contribution of the proposed business to Canada. It is accepted that on issues of fairness on the process followed by the visa officer, the standard of review is correctness. "If the Court is persuaded that the process was unfair, it will readily intervene." [See Dina v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 186.]
[7] It is important to note that section 8(1) of the Immigration Act provides that the burden of proof in an application for permanent residence rests on that person seeking to come to Canada. The visa officer's task is to weigh the evidence submitted by the applicant. As this Court held in Asghar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091 (T.D.) online: QL:
... In light of the onus that is on the applicant to produce evidence, it is not apparent that the visa officer should be compelled to give him a "running score" at every step of the proceeding.
It is clear from the cross-examination of the visa officer that she did request from the applicant, during the hearing, proof of her prior work history, finances and management experience, none of which was forthcoming at the time of the hearing. In the CAPS notes which were taken at the time of the hearing, the following entry is made by the visa officer, "I do not see that their business proposal is viable, told them that, I do not see that she has the ability nor the expertise to manage a viable business in Canada." In the circumstances of this case and guided by the jurisprudence and section 8 of the Immigration Act, I am of the view that the visa officer had no obligation to go any further than she did in providing the applicant with an opportunity to disabuse her of her concerns.
[8] A reading of the refusal letter that was sent to the applicant clearly states that the visa officer's decision was based on the conclusion that the applicant had not demonstrated that she had the "ability to establish or purchase a business in Canada that will .... make a significant contribution to the economy ... of Canada." In her affidavit, the visa officer states:
21. Since the Applicant did not present any documents that indicated that she had any past business record, any management skills, or any business ability or that she had sufficient funds for her business venture in Canada, I refused her Application. The Applicant had not provided any proof that she had ever run a profitable business and was unable to demonstrate that she had ever contributed to the success of any business. Furthermore, based on the information before me, there was no evidence that the Applicant's proposed business would make any specific contribution that would enhance the economy or the cultural or artistic life of Canada. The Applicant had not provided any proof of how she was going to pay her outstanding debts in Canada, nor how she was going to support herself and her family. She had not convinced me that she would be able to establish successfully in Canada. I determined that she did not meet the criteria for self-employed persons within the meaning of the Regulations.
...
26. I have read the assertions in paragraphs 12 to 14 of the Applicant's affidavit, and I wish to indicate that at the time of her interview, the Applicant was only able to provide proof that she owned a farm in Canada with a mortgage loan of $52,000. She was unable to provide proof of any liquid assets to be able to pay off her mortgage and support herself and her family.
[9] Courts, will not interfere lightly with decisions of visa officers. In Lin v. Canada (Minister of Citizenship and Immigration) [1999], F.C.J. No. 967, Madam Justice Reed, at paragraph 8 stated:
... They (the courts) do not quash a decision merely because they might have reached a different conclusion. Where a decision-maker has exercised statutory discretion in good faith, and in accordance with the principles of natural justice, and where reliance was not placed upon considerations irrelevant or extraneous to the statutory purpose, the courts do not interfere. (See Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at 7-8, and Lim v. Canada (M.E.I.) (1989), 8 Imm.L.R. (2d) 261, affirmed (1991), 12 Imm.L.R. (2d) 161 (F.C.A.).
[10] Madam Justice Reed in Hao v. Canada (The Minister of Citizenship and Immigration), [2000] F.C.J. No. 296, online: QL, reviewed the jurisprudence of this Court and adopted the standard of reasonableness simpliciter for the review of visa officer's decisions. I adopt the same standard for the purpose of this judicial review.
[11] In the case before me, the visa officer concluded that the applicant did not have the ability to become successfully established in Canada in her proposed business venture since there was no documentary evidence submitted by the applicant demonstrating that she ever ran a successful business or had the ability to do so. The visa officer accepted the fact that the applicant owned a farm in Nova Scotia with an outstanding mortgage of approximately $50,000 with liquid assets of approximately $16,000 which the visa officer felt was insufficient for the applicant to establish her business in Canada, support herself and her family and at the same time make mortgage payments on the farm. The visa officer concluded that the applicant did not have the depth of experience, the skills, the expertise, the ability nor the funds to be able to establish successfully as a self-employed person. In my opinion, the visa officer's conclusion was reasonably open to her on the record.
[12] Accordingly, for the above reasons, I will dismiss this application.
[13] The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1949-00
STYLE OF CAUSE: Gabriele Wohlmayer and the Minister of Citizenship and Immigration
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: October 11, 2001
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BLANCHARD
DATED: February 12, 2002
APPEARANCES:
Mr. Lee Cohen FOR APPLICANT
Ms. Lori Rasmussen FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada
Mr. Lee Cohen
Mr. Andrew J.M. Munro FOR APPLICANT Slone & Munro