Date: 20000915
Docket: IMM-2838-99
BETWEEN:
YAHYA ABDULREHIM BAHRO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] This is an application for judicial review of the decision of visa officer Merrill Clarke of the Canadian High Commission, London, England, dated May 5, 1999, refusing the applicant's application for permanent residence under the "investor" class.
[2] The refusal was based on the visa officer's opinion the applicant did not meet the definition of "investor" because he did not satisfy the requirements of paragraph 2(1)(a) of the Immigration Act, R.S.C. 1985, c. I-2. In the letter of refusal, the visa officer stated:
| In particular, you have not successfully operated, controlled or directed a business or commercial undertaking. Although you have experience as Manager of the Carpentry and Decor Division at Essa Binladen, you are not responsible for any specific cost centre or profits within your Division. In addition, I have taken into consideration your partnerships with Ahmad Nashawi and Bashir Aljabri, but you have not taken an active role in either of these partners and have merely invested your funds. Accordingly, I have determined that you do not meet the definition of an Investor. |
[3] In his application for permanent residence, the applicant described his experience from 1958 to 1980 when he ran his own retail business in Syria, and from 1981 to the present during which he has worked as General Manager of the Carpentry and Decor Division of the Essa Binladen Organization in Saudi Arabia. He also described his investments in other businesses in Saudi Arabia, including his ownership of 50% of Al Hamra Medical Polyclinic, and his investment of $217,702 in Bashir Shakib Alijabri Trading Est. He further stated he had assets in excess of $1,000,000 accumulated through his own efforts and had deposited $10,000 Cdn. in the Saskatchewan Government Growth Fund.
[4] At the interview, the applicant was questioned as to his experience, and asked how this background fulfilled the requirement in paragraph 2(1)(a) that an "investor" has successfully operated, controlled or directed a business.
[5] The first issue raised on this application is whether the visa officer erred in law in his interpretation of the definition of "investor". The applicant submits his 50% interest in the Al Hamra Medical Polyclinic is sufficient to meet the requirement of "control" found in the definition of "investor".
[6] In the affidavit of the applicant filed on this application, he deposes that "... I did not actively participate in management, but I took a keen interest in the business through my partners, with whom I discussed matters relating to the business from time to time. It may be said we functioned as an informal board of directors." At the interview, however, the applicant stated that he was only a "sleeping partner" and had no involvement in the business of the company.
[7] The applicant argues that a 50% interest in the Al Hamra Medical Polyclinic Company, without more, is sufficient to meet the requirement of "control". The applicant relies on Ho v. Minister of Citizenship and Immigration (1997) F.C.J. No. 1074 at paragraph 11 where Heald J. stated "... In my view the statement that the applicant had no shares in the business is directly relevant to the issue of whether the applicant controls the business ..." in support of the proposition that controlled refers to ownership in contrast to active participation. While ownership is an indicia of control, passive ownership, of less than a majority interest, in the absence of any other indicia, in my view, does not equate to control.
[8] While it is not necessary that a person have sole operational control of a business to meet the requirement of paragraph 2(1)(a) as an "investor", there should be some evidence beyond a financial investment. Control in this context implies some ability to influence, exercise authority, or decision making capability, either alone or with others, with respect to the manner in which the affairs of the business are conducted. Having regard to the evidence available to the visa officer regarding the applicant's participation in the Al Hamra Medical Polyclinic, I am not persuaded the visa officer erred in concluding this did not meet the definition of "investor".
[9] The applicant also submits that the visa officer erred when he concluded that the applicant's responsibilities at the Essa Binladen Organization did not meet the requirement of having "directed" a business. At the interview the applicant stated he was the administrative/manager of the carpentry shop for the company. His responsibilities included registering workers in and out, hours worked, and supervised the work in the shop. Over time, the number of employees he supervised both in the shop and on site increased from 30 or 40 to 200.
[10] In Cheng v. Canada (Secretary of State) (1994), [1995] 83 F.T.R. 259 at page 260, Cullen J. described the "investor"category as "... intended to extend to persons who have held a post of significant responsibility, such as a manager of a particular division or section of a large company". In Kwok v. Canada (Minister of Citizenship and Immigration) (1997), [1998] 138 F.T.R. 221 at page 224 the Court held that "... Title is not a relevant consideration, except as it may accurately reflect responsibility ...". Although the applicant's title at the Essa Binladen firm was administrative/manager, based on the applicant's description of his responsibilities as stated at the interview it was reasonably open for the visa officer to conclude that these responsibilities were not consistent with having either directed or operated a business.
[11] The last issue raised by the applicant is whether the visa officer erred in failing to provide the applicant a further opportunity to provide evidence concerning his retail business in Syria.
[12] At the interview the applicant stated he did not have any supporting documentation concerning his retail business. This was also confirmed in his affidavit where he states that due to the passage of time and his move to Saudi Arabia he is unable to provide documentary evidence. Given that he was asked at the interview if he could provide documents and he stated he did not have any, providing him with a further opportunity would have been futile. In this instance there was no breach of the duty of fairness.
[13] For these reasons, the application for judicial review is dismissed.
[14] Neither party had a question to submit for certification.
"Dolores M. Hansen"
J.F.C.C.