Date: 19990520
Docket: IMM-1811-98
BETWEEN:
VIJAY KUMAR TREHAN
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of visa officer Marlene Edmond rendered on March 16, 1998, whereby the applicant's application for permanent residence made pursuant to the self-employed category was refused.
[2] The applicant seeks an order setting aside the decision and directing the respondent to process the applicant's application in a favourable manner. In the alternative, the applicant seeks an order referring the matter for reconsideration by a different visa officer.
[3] The applicant's affidavit provides the following: Mr. Trehan prepared his affidavit from notes he took immediately after the interview with the visa officer.
[4] Mr. Trehan is a citizen of India. He is married and has one son. On October 31, 1997, his solicitor, Stephen Green, submitted an application on his behalf for permanent residence in Canada to the Canadian Consulate General in New York, pursuant to the self-employed criteria.
[5] Mr. Trehan's family owns Billa Enterprises, a garment manufacturing and distribution business. The company has existed for 35 years and is the largest manufacturer in Phagwara, Punjab. Upon finishing school in 1985, at the age of 16, the applicant went to work for the family business. He became very experienced in all aspects of the garment trade. In 1987, he was appointed the manager of Billa Enterprises, handling all of the sales and purchases of the firm. In March, 1997, he purchased 20% of the shares of Billa Enterprises and was an active partner and director in the company.
[6] Mr. Trehan is also a partner and director in two other garment distribution companies. He owns 50% of the shares in Sai Imports and Exports and 40% of the shares in Billa Silk & Sarees, which he bought in April, 1995. As a result of his position, he was responsible for the overall management of budgets, administration and the personnel of the companies. He was also responsible for purchases and sales, as well as solicitation and negotiations of contracts with other companies.
[7] Apart from doing local business, Mr. Trehan extended the market for the three companies internationally in Canada, the United States and the United Kingdom. Billa Enterprises and Sai Imports and Exports generated an annual export sale of Cdn $ 100,000 in 1995-96 to these three countries. As a result, Mr. Trehan has an excellent knowledge of the garment business in Canada, the USA and the UK.
[8] In support of his permanent residence application, Mr. Trehan provided the visa officer with the following documents:
| 1) Partnership Deeds for Billa Enterprises, Billa Silk & Sarees and Sai Imports & Exports. |
| 2) Membership certificates of Billa Enterprises and Billa Silk & Sarees. |
| 3) Account sheets of Billa Enterprises for 1994, 1995 and 1996; account sheets of Billa Silk & Sarees and Sai Imports & Exports for 1995 and 1996. |
| 4) Business income tax of Billa Enterprises and Sai Imports & Exports for 1995-96. |
| 5) Export sales of Billa Enterprises and Sai Imports & Exports for 1995-96. |
| 6) A net worth statement indicating the money in his bank account and the value of property owned in India and his shares in the companies. |
[9] Mr. Trehan attended an interview conducted by visa officer Edmond on March 10, 1998. The interview was conducted with the help of a Punjabi interpreter, as he has difficulty speaking English. The applicant said he had been in Canada for ten months and had researched the Toronto and Vancouver markets. He intended to set up a garment distribution business catering to the large Indian community in Vancouver. When asked why he picked Vancouver over Toronto, Mr. Trehan explained that the Indian community is larger in Vancouver and that the people are more established and wealthier. Therefore, they would be more inclined to spend money on quality garment. Since his specialty was manufacturing expensive high quality dresses, Vancouver was likely to be the best market.
[10] In Vancouver, he intended to rent warehouse space. He then would go door-to-door to Indian retailers and show them samples of the garments. He was prepared to supply garments on a very short notice in case his clients has immediate orders. Mr. Trehan said he would need two or three employees to assist him in his business.
When asked, the applicant told the visa officer that he and his partner purchased Sai Imports & Exports for approximately Cdn $ 4,000.00. The visa officer inquired how a person could start a business in India for such a small amount of money. The applicant responded that fabric manufacturers provide 60 to 90 days' credit. The partners never had a problem obtaining credit because of Billa Enterprises' good reputation. He later added that he and his partner invested more money along the way.
[11] The visa officer asked about the partnership of Billa Enterprises. There are six partners: the applicant's father, who is the owner of the company, three uncles, his brother and himself. He mentioned how much he paid for his shares and told her of the year's profits.
[12] The visa officer also inquired about his net worth. Mr. Trehan had Cdn $ 101,121.44 at Scotiabank and Cdn $ 3,500 in the Punjab National Bank. As well, he told her that he owned two pieces of land valued at Cdn $272,600. He had purchased this land for a very low price. Then they suddenly rose in value as a result of a change of zoning from agricultural land to industrial land. The value of his shares in the three garment companies was Cdn $ 41,523.
[13] Lastly, Mr. Trehan told the visa officer that his business would benefit the Canadian community. He is a successful businessman who intends to establish a profitable business, thereby giving tax revenue to the government.
[14] From the visa officer's notes taken during the interview and reproduced in form T11, her affidavit takes issue with some aspects of the applicant's claim.
[15] First, unlike the applicant, she remembers him saying that he would not need any employees and that he could run the business himself. This is confirmed in her notes.
[16] As well, on the subject of market research, she reports that, despite having been in Canada for over ten months, he was unable to provide other details that he could sell garments to the Indian community. He had no knowledge of the market in which he intended to do business and of the competition he would face.
[17] The visa officer reviewed the business documents the applicant submitted. She noticed that Mr. Trehan could only provide very vague information about his businesses. She expressed her concern that he did not seem to know his business very well. Given the poor quality of his answers, she placed little weight on the letters of reference from india, and was not satisfied that he had personally contributed to the success of the family businesses.
[18] The visa officer questioned the land appraisal. He told her that he bought the first property in 1993 for Cdn $ 1,480 and the second one in 1996 for Cdn $ 3,600. The applicant was unable to satisfactorily explain how the land had attained the value he now claimed. For this reason, the officer doubted the credibility of the valuation report of Cdn $ 272,000.
[19] Originally, the applicant was refused a visitor's visa in 1995. The visa officer examined this application and notice that he had stated that his annual salary was approximately Cdn $ 4,000. She asked how the applicant managed to acquire his claimed assets with such a low salary. This is when he admitted that the money at Scotiabank had been borrowed from relatives as his money was tied up in real estate.
[20] At the end of the interview, the visa officer informed Mr. Trehan that she was not satisfied that he had the ability to establish his proposed business in Canada. She wrote in the rejection letter dated March 16, 1998:
| I do not see from the documents that you have provided and from what you indicated at your interview that you have any experience as a business person. you have been unable to substantiate the fact that you ever ran a successful business. At interview, you had no supporting documents proving that you actually ran a profitable business. In my opinion, you do not have the in depth experience, the skills, the expertise nor the ability 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. |
[21] The issues raised are the following:
| 1) Did the visa officer base her decision on erroneous findings of fact made in a perverse and capricious manner and without regard to the material before her, thereby committing a reviewable error? |
| 2) Did the visa officer breach the duty of fairness in failing to confront the applicant with her concerns regarding his business background and experience, thereby committing a reviewable error? |
[22] A self-employed person is defined as follows at section 2 of the Immigration Regulations, 1978, SOR-78/172:
| "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. |
[23] Subsection 8(4) of the Immigration Regulations provide:
| 8(4) Where a visa officer assesses an immigrant who intends to be a self-employed person in Canada, he shall, in addition to any other units of assessment awarded to that immigrant award 30 units to the immigrant if in the opinion of the visa officer, the immigrant will be able to become successfully established in his occupation or business in Canada. |
8(4) Lorsqu'un agent des visas apprécie un immigrant qui compte devenir un travailleur autonome au Canada, il doit, outre tout autre point d'appréciation accordé à l'immigrant, lui attribuer 30 points supplémentaires s'il est d'avis que l'immigrant sera en mesure d'exercer sa profession ou d'exploiter son entreprise avec succès au Canada. |
[24] Mr. Trehan was awarded 43 units of assessment by the visa officer. His application could have been successful if he had been awarded an additional 30 units of assessment.
[25] In Chiu Chee To v. M.E.I., (May 22, 1996), A-172-93, the Federal Court of Appeal held that the appropriate standard of review of the decision of a visa officer is the same as enunciated in Maple Lodge Farms Ltd. v. Government of Canada et al, (1982) 2 S.C.R. 2, where MacIntyre J. stated at page 7:
| 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, 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. |
[26] The visa officer doubted the applicant's business abilities and afforded very little weight to the documentary evidence because he was unable to discuss in detail the activities of his businesses. Basically, she was not satisfied that he had personally contributed to the success of the family companies. Furthermore, he could not explain his plans of establishment in Canada, nor how his Indian property attained such high value. This is confirmed in the following excerpts of her notes:
| Subj had given basic info about the businesses in India |
| Subj stated on his application that he owns 2 properties in India. As per the deeds verified and discussed with subj at interview (...) market value of these properties is now Cdn $ 272,600 for both. Has presented an evaluation report. Subj could not explain what makes the land so valuable. |
| Subj intends to "do wholesale business of garments, suits, wedding dresses". Says that he will rent an office and will run the business by himself. He will not hire anyone. |
[27] Mr. Trehan argues that he believes that he has proven that he has experience as a business person and is capable of running a profitable enterprise. First, he was born and bred into the garment manufacturing and distribution business. He submitted several documents demonstrating his business background, such as accounting statements prepared by chartered accountants, partnership deeds, trade association membership and letters from the business community in Punjab, including the Minister of Education of Punjab, the President of the municipal Council of Phagwara and a firm of chartered accountants. As well, he provided the visa officer with detailed information such as how long it takes to make a high-quality dress and the usual terms of credit between business persons involved in the garment trade. He provided a likely explanation for the increase in value of his property. He had researched the Canadian market and made plans for the establishment of his business. The finding of the visa officer was therefore totally perverse.
[28] The matter seems to turn on which affidavit the Court finds most reliable. I am mindful of the comments of Madam Justice Reed in Parihar v. M.E.I., (September 20, 1991), T-1987-91, regarding the perception of an immigration official as opposed to an applicant on an interview:
| In addition, it is always somewhat troubling to see affidavits such as that in question here, which are prepared some considerable time after the event by officials who must interview a great number of people over the course of several months. Certainly, insofar as memory is concerned, one would expect that the individuals being interviewed would have clearer memory of what occurred (it being a unique experience for them) than the person doing the interview. |
| (...) After carefully reviewing the material, I have decided to accept the version of events as set out in the affidavit filed in support of the applicants' motion. As I have noted, the applicants' memory of the events is more likely to be better than that of the immigration officer. Mr. Akerstrom's affidavit is not supported by any objective evidence arising at the time of the interview. I would not want it to be thought that I am casting any doubt on Mr. Akerstrom's attempt to accurately reconstruct what occurred. I have simply concluded that the applicants' memories of the event are likely to be sharper. |
[29] In the present case, both parties took notes either during or immediately after the interview. The decision of the visa officer was written on March 16, 1998, only six days after the interview.
[30] It seems inconceivable that someone who was raised in the garment manufacturing and distribution business, employed for 12 years, including 10 years in a managerial position, and involved in two other profitable garment companies would have no experience or business acumen. If he lacked skills in the trade, it is difficult to believe that the family would retain him in the business for so many years. Furthermore, the documentary evidence clearly supports his ability and it was rejected out of hand by the visa officer simply on the basis that he was having difficulty during the interview. The letters of support were provided by officials whose importance was not questioned.
[31] I see no reason to disbelieve the claimed value of the applicant's lands. The Record contains a document from Gupta Architect valuing Mr. Trehan's land at Rupees 68 lakh and fifteen thousand. At paragraph 15 of the affidavit of Ms. Edmond, we see that 1 lakh is equivalent to Cdn $4,000. The report values the lands at Cdn $ 272,000.
[32] TI must conclude that the visa officer's findings that there was no evidence that the applicant actually ran a successful business and had no business experience is perverse.
[33] The application is allowed and the matter is returned for reconsideration by a different visa officer.
JUDGE
OTTAWA, Ontario
May 20, 1999