Ottawa, Ontario, April 29, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1] The Applicant is one of three Russian business partners who were refused visas because they did not qualify under the “entrepreneur” class, more fully defined in the Immigration and Refugee Protection Regulations (Regulations). The judicial review application of one of the partners, Dmitry Denisov, has been heard by Justice Gibson. It is the Court’s understanding that the third partner’s visa application is still pending.
[2] The Applicant, in this judicial review, has raised arguments as to the reasonableness of the decision and as to the procedural fairness of the decision process. Although the Applicant did not raise the issue of whether the Visa Officer erred in law in failing to aggregate the relevant businesses, the Court invited the parties to make submissions as to the applicability to this case of the decision in Thomas v. Canada (Minister of Citizenship and Immigration), 2006 FC 334.
[3] The provisions of s. 88(1) of the Regulations are attached as Annex 1. The key provisions for the purposes of this judicial review are:
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"business experience" , in respect of
(a) an investor, … means a minimum of two years of experience consisting of
(i) two one-year periods of experience in the management of a qualifying business …
(ii) … the management of at least five full-time job equivalents per year in a business …
(iii) a combination of a one-year period of experience described in subparagraph (i) and a one-year period of experience described in subparagraph (ii);
(b) an entrepreneur, … means a minimum of two years of experience … in the management of a qualifying business and the control of a percentage of equity of the qualifying business …
"entrepreneur" means a foreign national who
(a) has business experience;
(b) has a legally obtained minimum net worth; and
(c) provides a written statement to an officer that they intend and will be able to meet the conditions referred to in subsections 98(1) to (5). |
«expérience dans l’exploitation d’une entreprise» :
a) S’agissant d’un investisseur, … s’entend de l’expérience d’une durée d’au moins deux ans composée :
(i) soit de deux périodes d’un an d’expérience dans la gestion d’une entreprise admissible …
(ii) … la direction de personnes exécutant au moins cinq équivalents d’emploi à temps plein par an dans une entreprise …
(iii) soit d’un an d’expérience au titre du sous-alinéa (i) et d’un an d’expérience au titre du sous-alinéa (ii);
b) s’agissant d’un entrepreneur, … s’entend de l’expérience d’une durée d’au moins deux ans … dans la gestion d’une entreprise admissible et le contrôle d’un pourcentage des capitaux propres de celle-ci …
«entrepreneur» Étranger qui, à la fois :
a) a de l’expérience dans l’exploitation d’une entreprise;
b) a l’avoir net minimal et l’a obtenu licitement;
c) fournit à un agent une déclaration écrite portant qu’il a l’intention et est en mesure de remplir les conditions visées aux paragraphes 98(1) à (5). |
II. FACTUAL BACKGROUND
[4] The three party visa applications were made in conjunction with the Applicant’s brother and the other shareholder/partner in the businesses Centrpolytech and Kratos USA which were said to be owned and operated by them. The applications were filed at the Canadian Embassy in Moscow.
[5] Following the filing of various business records, the Applicant was interviewed, separately from her partners, with the use of the same interpreter in each case. Despite the Applicant’s claimed and apparent knowledge of English, she did not raise any issues of interpretation at the interview or at any time prior to these proceedings. There is some dispute in the record on this point. The Applicant says that during the interview she pointed out errors in the interpretation of technical terms. The Visa Officer says that no issues of interpretation were raised at the interview. There was no cross-examination of either witness.
[6] During the interview, the Applicant stated that Centrpolytech produced a type of construction material. There is some dispute as to whether the material was “gas beton” or “aerate concrete”.
[7] The Visa Officer informed the Applicant that her answer was at odds with information from her other business partners who had said the company was involved in the rental of real estate.
[8] The Applicant was given 60 days to provide additional proof of the existence and nature of Centrpolytech’s business. Those documents, subsequently provided, did not allay the Visa Officer’s concerns about the nature of the business and the Applicant’s role in it.
[9] As a result, the Visa Officer concluded that the Applicant did not come within the meaning of “entrepreneur” because she lacked the requisite business experience in that she did not manage a qualifying business.
[10] More specifically, the CAIPS notes indicate that the Officer considered and cross-referenced the three applications, one with the others, and believed that the Applicant and her other partner were “riding along” on such experience and expertise as her brother possessed. The Visa Officer concluded that the Applicant had not satisfied him as to her business experience and that, even if she had, neither of the two businesses was a qualifying business for any two of the five years prior to the application. In this regard, the Officer did not aggregate the two businesses for the purposes of determining whether there was a “qualifying business”.
III. ANALYSIS
A. Standard of Review
[11] The Supreme Court of Canada has clarified in Dunsmuir v. New Brunswick, 2008 SCC 9, that there are only two standards of review – correctness and reasonableness. On issues of procedural fairness, the standard of review is correctness.
[12] On the issue of the Officer’s decision itself, reasonableness must be weighed against a number of factors. In this case, the Visa Officer has some experience with both the subject matter and the country involved. The Officer also had the benefit of interviewing the Applicant and the other partners. The Officer’s conclusions are primarily fact driven, although the issue of “qualifying business” is one of mixed law and fact. Given these factors, the Court should accord considerable deference to the Officer’s assessment, particularly as regards “business experience”.
B. Procedural Fairness
[13] The Applicant raised the issue of procedural fairness, firstly in respect of translation problems and secondly in respect of cross-referencing the Applicant’s file with that of her partners, in assessing the existence and nature of the business and her business experience.
[14] It is well established law that where there are translation problems, the complainant must raise the problem at the first reasonable opportunity (Rafipoor v. Canada (Minister of Citizenship and Immigration), 2007 FC 615).
[15] In this case, the Applicant, who was well versed in English, had that opportunity right at the interview itself and then subsequently through the visa application process. The evidence on whether the issue was raised at the interview is equivocal. The Visa Officer denies that any complaint was made. Neither the Applicant nor the Visa Officer was cross-examined. The Court is left with directly conflicting evidence. Therefore, since the burden rests with the Applicant and she cannot counter the equivalent evidence of the Respondent, she has not met the burden of proof.
[16] On the issue of cross-referencing the files of the other applicants, it would border on failure to carry out his duty had the Visa Officer ignored those other files. The duty of the Visa Officer was to assess the Applicant’s experience with businesses in which she was involved. It would have been impossible to assess the Applicant’s role adequately without giving attention to the role of her partners in those businesses.
[17] As to the conflict concerning the nature of the businesses, the Visa Officer could not ignore the vastly different businesses Centrpolytech was alleged to conduct. The Applicant was fully informed of the Officer’s concerns and the source of those concerns, and was given 60 days to produce evidence to overcome those concerns. She therefore had all the procedural protection necessary for her to address the issue.
[18] Therefore, I conclude on both matters that procedural fairness was observed.
C. Visa Officer’s Decision
[19] The Applicant must satisfy at least two criteria to qualify under the Regulations – (1) the Applicant must have management experience (and equity) in the business; and (2) the business must be a “qualifying business” in that it meets certain sales, income and asset benchmarks.
[20] The Visa Officer’s analysis of the “qualifying business” factor is at best confusing and potentially flawed. The Officer had concluded that Kratos USA was a qualifying business for at least one year out of the qualifying two years within the previous five years.
[21] In the course of these proceedings, the Officer conceded that Centrpolytech also was a qualifying business in one out of two of the years relevant to its status of “qualifying business”.
[22] Further, the Officer did not address whether the businesses at issue should have been aggregated for purposes of determining if the combined business units met the financial benchmarks.
[23] In Thomas, I held that aggregating business is consistent with the purposes of the legislative provisions in that it focuses consideration of the entrepreneur on the overall results of the business activities managed by him/her. It leads to a result in keeping with the very aim of the statutory provision and the Regulations. In my view, the term “qualifying business” is not restricted to each legal entity conducting the non-investment income activity. It is more consistent with the purposes of the Immigration and Refugee Protection Act and the Regulations to include the financial results of the total of the entrepreneur’s non-investment income activities. Therefore, the results of the business units should be aggregated for a determination of whether an applicant met any two of the conditions contained in the term “qualifying business”.
[24] However, the Visa Officer’s concerns were not as particularly focused on the financial benchmarks as they were on the nature of the business and the specific management experience of the Applicant. The Officer was more concerned with the absence of business management experience than whether the business was a “qualifying business”.
[25] It is evident that the Officer did not believe that the Applicant had business experience and in this judicial review application, scant attention was paid to evidence (if any) that the Applicant had that type of experience.
[26] Given the record in this case, including but not limited to the contradiction between the three visa applicants as to whether Centrpolytech was a construction materials business or a real estate rental business, it was open to the Officer to disbelieve the Applicant.
[27] Under these circumstances it did not matter whether the businesses “qualified”, the Applicant fails because she did not have the required business experience. This was a reasonable conclusion.
IV. CONCLUSION
[28] For these reasons, this judicial review will be dismissed.
[29] The parties made submissions as to a certified question. However, this case turns on the facts particular to this case. The issue of aggregating businesses is not dispositive of this judicial review. The other legal issues are well-settled law. Therefore, there is no question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that this application for judicial review will be dismissed.
ANNEX 1
Immigration and Refugee Protection Regulations, SOR/2002-227
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3364-07
STYLE OF CAUSE: SHAROVA NADEZHDA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 3, 2008
APPEARANCES:
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Mr. Joseph Farkas Mr. Nikolay Chsherbinin (student-at-law)
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Ms. Negar Hashemi
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SOLICITORS OF RECORD:
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MR. JOSEPH FARKAS Barrister & Solicitor Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |