Date: 19991104
Docket: IMM-6024-98
BETWEEN:
VIRGILLIA BURDZIAK
Applicant
- and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.
[1] The applicant Virgillia Burdziak applied for permanent residence in Canada as an entrepreneur. She was interviewed by a visa officer in Bonn on October 15, 1998. The visa officer rejected her application for reasons stated in a letter dated October 23, 1998. Ms. Burdziak seeks judicial review of that decision.
Preliminary motion -- late filing of affidavit of visa officer
[2] This application was commenced on November 24, 1998. The record filed on behalf of Ms. Burdziak on March 22, 1999 contains her affidavit and a number of attachments. Counsel for the Minister did not cross-examine Ms. Burdziak on her affidavit. No affidavit or record was filed on behalf of the Minister within the time permitted by the rules.
[3] Counsel for the Minister applied on October 28, 1999, one week before the date set for the hearing of this application, for leave to extend the time for serving and filing an affidavit of the visa officer and a memorandum of fact and law. With admirable frankness, he admitted that it was by his own oversight that this material had not been filed. He argued, however, that Ms. Burdziak is not prejudiced by the late filing of the visa officer's affidavit if the hearing is adjourned to permit the cross examination of the visa officer.
[4] Counsel for Ms. Burdziak consented to the late filing of a memorandum of fact and law, and I allowed it to be filed. However, he opposed the filing of the visa officer's affidavit. He argued that several steps had been taken in this matter since it was commenced almost a year ago that should have brought this file to the attention of counsel for the Minister. He said that it is unfair at this stage to put Ms. Burdziak to the choice of foregoing cross-examination on the visa officer's affidavit or delaying the resolution of her application.
[5] I agreed with the submissions of counsel for Ms. Burdziak on this point. I am not satisfied that there is any justification for the failure of the counsel for the Minister to file his material within the time permitted by the rules. On that basis I did not allow counsel for the Minister to file the visa officer's affidavit.
Review of visa officer's decision
[6] Ms. Burdziak is a citizen of Germany, as is her husband. They live in Belgium and both wish to come to Canada. Mr. Burdziak was a teacher but is now retired, though he is not yet sixty years of age. He has a pension income of approximately $4,000 per month.
[7] Ms. Burdziak was not employed at the time of her application in 1997 or at the time of the interview. Her main work experience consisted of approximately 10 years as the volunteer manager of a branch of the Third World Shop ("Weltladen") in Belgium.
[8] The Third World Shop is apparently a charitable organization that sells goods made by cooperatives in underdeveloped countries. Ms. Burdziak and her husband opened the store in 1985 and ran it for ten years. She claims to have had the primary responsibility for the day to day management, including purchasing, accounting and the coordination of volunteer workers. She says that her role in managing the Third World Shop involved 17 to 20 hours per week for the ten year period from 1985 to 1995. She relies on her experience with the Third World Shop, in part, as evidence of her ability and intention to establish, purchase or make a substantial investment in a business in Canada.
[9] Ms. Burdziak also relies on evidence to the effect that she and her husband had sufficient means to make an investment of up to $100,000 in a Canadian business. In preparation for her application, she and her husband attended a seminar at the Ontario Ministry of Economic Development and Trade, at which she received certain advice about how to approach her application to come to Canada as an entrepreneur. She says that based on that advice, she did not attempt to prepare any formal business plan for the visa officer, but instead presented evidence that she was considering three different options.
[10] The first option, and the one that was the most fully developed, was to open a shop that would sell a variety of items including chocolates and crafts. Another was to purchase a dry cleaning franchise. In that connection she had indicated in material produced to the visa officer that she had had discussions with someone in Canada who had some knowledge of dry cleaning franchises and who indicated that a franchise could be obtained for a price that was within her means. A third idea was to open a snack shop.
[11] The visa officer gave several reasons for rejecting Ms. Burdziak's application. The visa officer said that she was not satisfied that Ms. Burdziak's experience equipped her with the ability to start up a business operation in Canada. Nor was she satisfied that Ms. Burdziak had the requisite intention, given the vagueness of her plans and the lack of preparation in certain specific details, such as knowledge of the expected revenue from sales if she were to open a shop. The visa officer also concluded that Ms. Burdziak had not established that her proposed business would be of significant benefit to Canada.
[12] The decision of a visa officer with respect to an application for permanent residence as an entrepreneur is a discretionary one that must be made on the basis of specified statutory criteria. The decision must stand if the statutory discretion was exercised in good faith, in accordance with the principles of natural justice, and without reliance on considerations that are irrelevant or extraneous to the statutory purpose: Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2; To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (F.C.A.)(Q.L.).
[13] The principal argument of counsel for Ms. Burdziak was that the visa officer approached the interview with such a negative predisposition to Ms. Burdziak's application that it unfairly influenced her assessment of the evidence and her decision: Lun v. Canada (Minister of Citizenship and Immigration) (1997), 41 Imm. L.R. 300 (F.C.T.D.). In essence, the argument is that the visa officer failed to act in accordance with the principles of natural justice.
[14] Counsel for the Minister agrees that the record discloses an attitude on the part of the visa officer that was skeptical of Ms. Burdziak's ability and intention to become an entrepreneur in Canada, but argues that the officer was not so skeptical as to have prejudged the matter before the interview. He acknowledges that the visa officer had a concern, based on her review of the documents before the interview, that Ms. Burdziak was actually intending to come to Canada to retire, rather than to establish, purchase or invest in a business in Canada. He argues that this concern was a valid one, given the circumstances of Ms. Burdziak and her husband. Based on the material, I am inclined to agree that this concern was a valid one.
[15] However, the record supports the argument of counsel for Ms. Burdziak that the visa officer's preliminary conclusions led her to ignore or mischaracterize the evidence. In this regard there is at least one error that I find significant. In her reasons for the decision, the visa officer said that Ms. Burdziak offered no proof that she was responsible for purchasing and stock selection for the Third World Store. In fact, Ms. Burdziak provided three letters as proof of that very fact. Those letters were in the record that was before the visa officer.
[16] Counsel for the Minister acknowledges this error but says it is not significant, because the visa officer's decision can be justified on the remainder of the record. I do not agree. The failure to consider those three letters appears to be an important reason for the visa officer's discounting of Ms. Burdziak's experience with the Third World Store in connection with her claimed ability to establish and manage a business. It is futile to speculate on whether or not the visa officer's assessment of Ms. Burdziak's work experience would have been different if she had not disregarded those letters.
[17] For these reasons the decision of the visa officer will be quashed and the application for permanent residence will be referred for reconsideration by a different visa officer.
[18] At the hearing, I indicated that I would defer the issuance of an order pending submissions on a certified question. The submission of counsel for the Minister is to be served and filed by November 8, 1999. Any reply by counsel for Ms. Burdziak is to be served and filed by November 12, 1999.
"Karen R. Sharlow"
Judge
Toronto, Ontario
November 4, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-6024-98 |
| STYLE OF CAUSE: VIRGILLIA BURDZIAK |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: TUESDAY, NOVEMBER 2, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
| AND ORDER BY: SHARLOW J. |
DATED: THURDAY, NOVEMBER 4, 1999
APPEARANCES: Mr. David B. Cranton
| For the Applicant |
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: David B. Cranton
| Barrister & Solicitor |
| 2-2277 Queen St. E., |
| Toronto, Ontario |
| M4E 1G5 |
| For the Applicant |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 19991104
Docket: IMM-6024-98
BETWEEN:
| VIRGILLIA BURDZIAK |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |