Date: 20010514
Docket: IMM-2430-00
Neutral Citation: 2001 FCT 477
BETWEEN:
VASILE GHEORGHE DIMITRIE LAZARU
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of J.W. Andre Valotaire, Immigration Officer at the Canadian Embassy in Berlin, Germany, dated April 19, 2000, wherein he refused the applicant's application for permanent residence in Canada.
[2] The applicant was born on November 21, 1936 in Lipova, Romania and currently resides in Germany. On March 2, 1999 his former representative, "Intermonde", submitted an application for permanent residence in Canada on the applicant's behalf to the Canadian Embassy in Bonn, pursuant to the Self-Employed selection criteria in the Immigration Regulations, 1978. The basis for the application was that Mr. Lazaru believed his extensive experience as a private entrepreneur would provide him with the ability to create an employment opportunity for himself in Canada and make a significant contribution to the economic life of Canada.
[3] On April 19, 2000, the applicant attended a personal interview with visa officer J.W. Andre Volotaire at the Canadian Embassy in Berlin. The officer refused the application for permanent residence on the grounds that the applicant did not meet the definition of "self-employed person" in subsection 2(1) of the Immigration Regulations as he was unable to demonstrate that he had the ability to establish or purchase a business in Canada that would be successful and would create an employment opportunity for him. The reasons for the visa officer's conclusion were that the applicant had never owned a registered self-employed business and had never managed his own business; the applicant had no knowledge of the business environment in Canada and had not visited Canada to explore business opportunities; and, the applicant's business plan was unreasonable.
[4] The applicant now seeks to have that decision set aside on the grounds that the visa officer based his decision on an erroneous finding of fact made without regard to the material before him and erred in law in making his decision.
[5] After carefully reviewing the written submissions and upon hearing the oral arguments of the parties, I am satisfied that the application for judicial review should be allowed and the decision of the visa officer set aside.
[6] First, I cannot ascertain that there is any evidence whatsoever to support the visa officer's findings of fact that Mr. Lazaru had never had a registered self-employed business and had never managed his own business. On the contrary, the letters of reference submitted in support of his application for permanent residence, contained in Exhibit "B" of the applicant's Motion Record, state unequivocally that he was a freelance contractor with a team working under him. Indeed, it appears to me that all of the evidence pertaining to the applicant's work record, demonstrates that he was engaged in a self-employed enterprise, to the extent that it was possible to have such an operation in Romania, a communist regime which was extremely adverse to private initiative.
[7] In any event, the visa officer clearly erred in law by placing undue emphasis on what he perceived to be the applicant's lack of self-employed business experience. In his decision of April 19, 2000 the officer writes ". . . you stated that you had no business registered, that no financial documents exist for these activities since they were illegal, no revenues were ever declared, etc.."
[8] The jurisprudence has established that past experience in self-employment is but one factor to be considered in cases of this nature. In Grube v. Canada (M.C.I.) (1996), 118 F.T.R. 163, McKay, J., relying on the decisions of this Court in Ho v. Canada (M.E.I.) (1989), 27 F.T.R. 241 and Yang v. Canada (M.E.I.) (1989), 27 F.T.R. 74, stated as follows:
In my view, in the case before me the visa officer placed undue emphasis on the lack of past business experience as a self-employed person when assessing the applications of each Ms. Grube and Mr. Khachatryan. That experience, as a self-employed person, may well be a factor to be favourably considered when determining whether an applicant is likely to become successfully established as a self-employed person in Canada, but it is not the sole criterion to be considered, and it must be considered in light of the occupation sought to be undertaken in Canada. It may be of greater significance in relation to certain occupation than it is to others.
In the circumstances here, the visa officer stated in the letters of April 13, 1995 that he would not grant favourable consideration to Ms. Grube's or Mr. Khachatryan's application for permanent residence unless documentation related to past business records and to past experience as self-employed persons was provided. In my view, those statements indicate that the visa officer placed undue emphasis on past experience. Indeed, the lack of past experience was determinative of the decision in each case, as the visa officer indicated that it was only through adducing such evidence that these two applicants could succeed. As in Ho, this undue emphasis on past experience made it virtually impossible for the applicants to succeed in their applications.
(emphasis added)
[9] I find that reasoning equally applicable here. It is clear from the visa officer's decision that his determination was based primarily on the fact that the applicant did not, in his view, have previous experience being self-employed. That conclusion is not supported by the evidence nor is it a requirement under the self-employed guidelines or the Immigration Regulations for an applicant to have operated a self-employed business. Rather, the requirement is that an individual have the intent and ability to establish a self-employed business.
[10] Finally, I am not satisfied that the visa officer's conclusions that the applicant had "no knowledge of the business environment in Canada" and that his business plan was "not realistic" are supported by any facts. Once again these findings seems contrary to the documentation submitted by Mr. Lazaru in support of his application for permanent residence which demonstrates that he did have contacts in Canada who had provided him with all of the necessary figures to prepare the business plan which he had in place. The applicant was also aware of the permits he would require to conduct his business and of the particulars of those permits.
[11] For these reasons, I am granting the application for judicial review. Accordingly, the decision of the visa officer, J.W. Andre Valotaire, dated April 19, 2000, is set aside and the matter is referred back to a different visa officer for redetermination of the application for permanent residence in accordance with these reasons.
JUDGE
OTTAWA, Ontario
May 16, 2001