A-260-85
Agus Muliadi and Queen's Photo Finishing Ltd.
(Appellants)
v.
Minister of Employment and Immigration and
Secretary of State for External Affairs (Respon-
dents)
INDEXED AS: MULIADI Y. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (F.C.A.)
Court of Appeal, Thurlow C.J., Stone and Mac-
Guigan JJ.—Toronto, February 4; Ottawa, March
10, 1986.
Judicial review — Prerogative writs — Certiorari — Appeal
from Trial Division decision refusing certiorari and mandamus
re: denial of permanent residence status — Application for
permanent residence as entrepreneur — At interview with visa
officer, appellant informed decision to deny application made
by provincial authority due to negative assessment of business
proposal — Appeal allowed — Duty of visa officer, before
disposing of application, to inform appellant of negative
assessment and give him opportunity to correct or contradict it
— That burden of proof on appellant to show right to come
into Canada or that admission not contrary to Act or Regula
tions, not relieving visa officer of duty to act fairly — Visa
officer erred in delegating decision-making function to Ontario
government official — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 18 — Immigration Act, 1976, S.C. 1976-77, c.
52, ss. 8(1), 9(2),(4) — Immigration Regulations, 1978, SORI
78-172, ss. 2(1) (as am. by SOR/79-851, s. 1), 8(1)(c) (as am.
idem, s. 2), 9(b) (as am. idem, s. 3), 11(3) (as am. by SOR/81-
461, s. 1).
Immigration — Visa officer denying application for perma
nent residence as "entrepreneur" based on provincial govern
ment's negative assessment of business proposal — Particular
attention paid to "whether or not employment opportunities
for a significant number of Canadians would be created" — S.
2(1) definition of "entrepreneur" referring to job creation 'for
more than five Canadian citizens" — Visa officer exceeding
jurisdiction in considering requirement not within definition —
Breach of duty of fairness in not informing appellant of
negative assessment and giving him opportunity to correct or
contradict it before disposing of application — Visa officer
erred in delegating decision-making authority to provincial
authorities — Immigration Regulations, 1978, SOR/78-172,
ss. 2(1) (as am. by SOR/79-851, s. 1), 8(1)(c) (as am. idem, s.
2), 9(b) (as am. idem, s. 3), 11(3) (as am. by SOR/81-461, s. 1)
— Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 8(1),
9(2),(4).
This is an appeal from the Trial Division's dismissal of an
application for certiorari and mandamus concerning the denial
by a visa officer of the appellant's application for permanent
residence. The appellant owned 40% of a Japan Camera Centre
franchise. In the first four months, the business lost $23,700.
The application for permanent residence was processed on the
basis that the appellant was an entrepreneur. Upon being
informed that his application had been denied, he provided a
solicitor's letter giving additional information so that his
application might be considered further. The appellant was
granted a personal interview with a visa officer. He was
immediately told that his application had been refused because
of the negative assessment of his business proposal received
from the Province of Ontario. The appellant was told that the
decision had been made by the provincial authorities. The
appellant's Canadian business partners were unaware of any
questioning or investigation of the business. The formal notifi
cation of the visa officer's decision indicates that among other
things particular attention was paid to whether employment
opportunities would be created for a significant number of
Canadians. The appellant submits that the Trial Division erred
in refusing his application under section 18 in that the visa
officer had arrived at his decision on the basis of an adverse
assessment by the Province of Ontario without first giving him
any opportunity of correcting or contradicting it.
Held, the appeal should be allowed.
The receipt by the visa officer of the Province of Ontario's
assessment was not bad in itself. Its reception was contemplated
and even authorized by the appellant at the time of his applica
tion. However, it was the visa officer's duty to inform the
appellant of the negative assessment and to give him a fair
opportunity of correcting or contradicting it before making the
decision required by the statute. In the circumstances, although
the legislative framework did not entitle him to a full oral
hearing before a decision was made, he should have been
afforded the opportunity of meeting the negative assessment by
the provincial authorities before it was acted upon by the visa
officer. The duty to act fairly extends to this kind of case. As
stated in In re H.K. (An Infant), [1967] 2 Q.B. 617 (H.L.),
"even if an immigration officer is not in a judicial or quasi-judi
cial capacity, he must at any rate give the immigrant an
opportunity of satisfying him of the matters in the subsection,
and for that purpose let the immigrant know what his immedi
ate impression is so that the immigrant can disabuse him."
Although the immigrant has the burden of proving that he has
a right to come into Canada or that his admission would not be
contrary to the Act or Regulations, this does not relieve the visa
officer of the duty to act fairly. Had the appellant been
informed of the negative assessment before it was decided to
reject his application, he might have been able to disabuse the
visa officer of his view that the business was not viable. He
might also have been able to bring to the visa officer's attention
the fact that no inquiries or contact had been made by the
Ontario authorities. He had no way of knowing the result of the
assessment process until informed of it by the visa officer when
the decision to reject his application had already been made.
Secondly, the evidence strongly suggests that the decision to
refuse the appellant's application was made by a Government
of Ontario official, rather than by the visa officer. The decision
on the application had to be made by the visa officer and it
could not be delegated. This was a serious error.
Finally, the visa officer was entitled to decide whether the
appellant was an "entrepreneur" within the meaning of section
2 of the Regulations. However, he was required to consider only
that which is authorized by the language of the definition. He
exceeded his jurisdiction in paying particular attention to
"whether or not employment opportunities for a significant
number of Canadians would be created." Section 2 speaks of
job creation for "more than five Canadian citizens", not "a
significant number of Canadians".
CASES JUDICIALLY CONSIDERED
APPLIED:
Board of Education v. Rice, [1911] A.C. 179 (H.L.); In
re H.K. (An Infant), [1967] 2 Q.B. 617 (H.L.); Hui v.
Canada (Minister of Employment and Immigration),
[1986] 2 F.C. 96 (C.A.).
REFERRED TO:
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311; Mar-
tineau v. Matsqui Institution Disciplinary Board, [1980]
1 S.C.R. 602; Kane v. Board of Governors (University of
British Columbia), [1980] 1 S.C.R. 1105; Randolph,
Bernard et al. v. The Queen, [1966] Ex.C.R. 157; Regina
v. Gaming Board for Great Britain, Ex parte Benaim and
Khaida, [1970] 2 Q.B. 417 (C.A.).
COUNSEL:
Cecil L. Rotenberg, Q.C. for appellants.
Carolyn Kobernick for respondents.
SOLICITORS:
Cecil L. Rotenberg, Q.C., Toronto, for
appellants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
STONE J.: This appeal flows from an application
made by the appellant pursuant to the Immigra
tion Act, 1976 [S.C. 1976-77, c. 52] and the
Regulations [Immigration Regulations, 1978,
SOR/78-172] made thereunder for permanent
residence in Canada. The application was denied
by the visa officer by whom it was considered. In
consequence of that denial the appellant applied to
the Trial Division [Muliadi v. Minister of
Employment and Immigration, T-689-84, not yet
reported] pursuant to section 18 of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10] for a
writ of certiorari as well as of mandamus. That
application was dismissed on February 14, 1985
and this appeal is brought from that decision.
The appellant is a resident of Indonesia where
he was born in 1940. His application for perma
nent residence in this country is dated October 12,
1981 and included his wife and his children. In
that application he gave as his intended occupation
in Canada:
Participate in forming a franchise of Japan Camera, under
name of QUEEN'S PHOTO FINISHING ... Hamilton Ont ....
In fact, the appellant did invest the sum of
$100,000 in that business thereby becoming the
owner of 40% of the shares of the operating com
pany. He loaned the additional sum of $20,000 to
the company. It commenced operations in October
1981 and by March 31, 1982 showed an operating
loss of $23,700.
The application for permanent residence was
processed on the basis that the appellant fell
within the entrepreneurial category. Attached to it
was a form entitled "Entrepreneurial Letter of No
Objection", signed by the appellant. That form
read in part:
I, the undersigned, have no objection to my name and intended
address in Canada and the information concerning the nature
of my proposed business being released to the appropriate
provincial authorities.
I understand that the provincial authorities will only assess the
viability of my business proposal and will so advise the Canadi-
an High Commission in Singapore who will determine if my
application for permanent residence in Canada may be
accepted.
I further understand that, if my application for permanent
residence is accepted as an entrepreneur, the Canadian High
Commission may recommend to the Immigration Officer at the
port of entry to Canada that the following condition be
imposed:
that, within five and half months of landing, (permission to
come into Canada to establish permanent residence)
(A) I establish or purchase a substantial interest in the
ownership of a business in Canada whereby employment
opportunities are created in Canada for more than five
Canadian citizens or permanent residents, or more than
five Canadian citizens or permanent residents are con
tinued in employment in Canada, and
(B) I participate in the daily management of the business
referred to in clause (A).
The appellant supplemented the supporting ma
terial by a letter dated December 12, 1981
addressed to the Canadian High Commission,
Immigration Section in Singapore whose office
had assumed responsibility for processing the
application. In that letter he wrote in part:
I acknowledge with thanks the receipt of your letter of Novem-
ber 11, 1981 with 1 (one) enclosure—File No. B0103 2024-0
"ENTREPRENEUR LETTER OF NO OBJECTION".
I have already signed and sent this letter together with my
application to be a permanent residence in Canada in full set on
October 12, 1981. Herewith I sign and submit to you again.
As my application for immigration on October 12, 1981, I have
to strengthen that I have already participated on business in
Canada dealing in franchise of Japan Camera Centre, under
the name of:
QUEEN'S PHOTO FINISHING COMPANY
999 Upper Wentworth Street
Hamilton, Ont. L9A 4X5
on which I am the main founder and owned a majority of
shares. Due to I am not yet being a permanent residence in
Canada, therefore, I cannot participate in daily management in
the Company. So, for a temporary period I hold the position as
a Vice President only.
QUEEN'S PHOTO FINISHING COMPANY has employed more
than 5 (five) Canadians for the time being, and will employ
more in the near future. The business line is fast printing and
processing films besides dealing in the film equipments (trad-
ing). The store is located in LIME RIDGE MALL, which is one of
the busiest Mall in the centre of Hamilton. The total capital
plan to invest is Can. $300.000.—and expected total sale is
Can. $500.000.—per annum.
Our clients and buyers are expected to be people who reside
near the Mall or people who visit the Mall. Our Company hires
1 (one) manager who has experience for years in running of the
machines and equipments. Because we are a franchise of Japan
Camera Centre, therefore Japan Camera Centre will give
assistances to us if necessary.
In the future, I plan to expand the business by setting up
another stores in other town/place, and in this case, will employ
more and more Canadians.
For details of our Company, please contact our lawyer:
Mr. Michael A. Heller,
Barrister, Solicitor, Notary
239 Queen Street East
Brampton, Ont. L6W 2B6
And for information and details of the Company business line,
please contact the President of our Company:
Mr. Lim, Tjong Khing
19 Leander Street
Bramalea, Ont. L6S 3M#, phone: (416) 453-3409
as he is the only person responsible for the Company and
involves in daily management as long as my permanent resi-
denceship is not yet being granted.
By letter of March 12, 1982 the Canadian High
Commission informed the appellant that his
application had been denied on the basis that he
did "not meet immigration requirements at the
present time". The letter went on to state:
Particular attention has also been given to your proposed
business plan, the capital available to fund this proposal, your
expertise in relation to these plans, your proposed participation
in the business, and whether or not employment opportunities
for a significant number of Canadians would be created.
By a postscript the appellant was invited to provide
additional material and information in the event
he wished to have his "application considered fur
ther". In fact this was furnished by way of a
solicitor's letter dated June 10, 1982. In a letter
dated November 2, 1982 the Office of the Canadi-
an High Commissioner in Singapore passed the
following information concerning the application
to the appellant's solicitor:
Following receipt of Mr. Muliadi's business proposal, we
referred it to the Ontario Small Business Operations Division
for their views as to the viability of this proposal. We have now
been advised that the proposal is currently being reviewed and
we should receive their views in the near future.
On receipt of Ontario's assessment, Mr. Muliadi will be given
an opportunity for a personal interview either in Jakarta or
Singapore, should his business proposal be recommended.
In due course, it appears, the visa officer
received a telex communication from a provincial
government official in Ontario. The applicant was
granted an interview by Mr. A. Lukie (presumably
the visa officer concerned with the application) at
the office of Canadian High Commission in Sin-
gapore. What transpired at that interview is the
subject of the following evidence contained in
paragraph 3(m) of an affidavit sworn by the appel
lant on February 25, 1984 in support of his
application under section 18 of the Federal Court
Act:
3....
(m) When I attended the interview in Jakarta on the 12th of
December 1982. I was told straight away by Mr. Lukie that
my application was being refused and he showed me as
constituting the reason therefore, a telex sent to him from
what I understood to be the Province of Ontario, refusing my
application. I asked him, why did he call me for an interview
if an assessment by him was not to be made, and he said he
was very sympathetic to my case, but he was sorry for as the
decision was made by the authority who sent the telex, there
was nothing he could do about it. It was clear throughout the
half hour interview following upon my refusal that Mr. Lukie
wanted some facts about my business background. I also
confirmed for him that there were more than five employees
and that the business was making a profit and was well
established. He did not question my experience to run this
business nor my bona fides and sincerity of intention to go to
Canada. The interview left me with no doubt that the
decision (or assessment) had not been made by him but
rather by the person or authority who sent the telex and that
he had neither authority or discretion in the matter.
Formal notification of the visa officer's decision
is set forth in a letter dated December 22, 1982
sent to the appellant by Mr. Lukie. The body of
that letter is word for word with that of the letter
of March 12, 1982 referred to above. In it, the
following reasons were given for denying the
application:
We regret to inform you that you do not meet immigration
requirements at the present time. This decision has been taken
only after a careful and sympathetic review of all factors
relating to your case, taking into consideration your education
and training, age, experience, ability to speak English and/or
French, the area in which you wish to locate and the presence
of close relatives residing in Canada.
Particular attention has also been given to your proposed
business plan, the capital available to fund this proposal, your
expertise in relation to these plans, your proposed participation
in the business, and whether or not employment opportunities
for a significant number of Canadians would be created.
At its foot appears the following notation: "bcc:
Mr. Cooper—Your 1-1639 refers". On the subject
of this notation the appellant had this to say in
paragraph 3(n) of his affidavit:
3(n) ... I am informed by Mr. Rotenberg and do verily believe
that Mr. Cooper is a functionary of the Ontario Government
agency
referred to in the letter of November 2, 1982. Mr.
Rotenberg is the appellant's counsel herein. In
paragraph 3(q) of his affidavit the appellant
makes the following statement concerning the let
ters refusing his application for permanent resi
dence in Canada.
3....
(q) I was totally unable to understand either of the refusal
letters in the light of the facts of this matter and the
interview that I had with Mr. Lukie. I had quite clearly
indicated that not only was the business well established and
doing well but that the main Franchise was doing well as I
understood the situation to be, that is to say that "Japan
Camera Centres" were an attractive and growing operation.
I am also informed by my Canadian business partners, that
there was not to their knowledge at any time any questioning
or investigation of our business at any time to determine the
viability of our operation. There was never anyone by the
name of Cooper or from his office who ever contacted any of
my business partners.
The appellant was not cross-examined on his
affidavit. Nor did the respondent file any material
in contradiction of any of the above statements. In
the circumstances, they may be fairly viewed as
establishing part of the factual background against
which this appeal must be decided.
The visa officer's decision was made in the
context of certain statutory provisions appearing in
the Immigration Act, 1976 and the Regulations.
The word "entrepreneur" is defined in subsection
2(1) [as am. by SOR/79-85l, s. 1] of the Regula
tions, which at the relevant time read as follows:
2.(1)...
"entrepreneur" means an immigrant who intends and has the
ability
(a) to establish or to purchase a substantial interest in the
ownership of a business in Canada whereby
(i) employment opportunities will be created in Canada for
more than five Canadian citizens or permanent residents,
or
(ii) more than five Canadian citizens or permanent resi
dents will be continued in employment in Canada, and
(b) to participate in the daily management of that business;
Additionally, paragraphs 8(1)(c) [as am. idem, s.
2], 9(b) [as am. idem, s. 3] and subsection 11(3)
[as am. by SOR/81-461, s. 1] of the Regulations
pertain to an application under the "entrepreneur"
category. They read at the relevant time as
follows:
8. (1) For the purpose of determining whether an immigrant
and his dependants, other than a member of the family class or
a Convention refugee seeking resettlement, will be able to
become successfully established in Canada, a visa officer shall
assess that immigrant or, at the option of the immigrant, the
• spouse of that immigrant,
(c) in the case of an entrepreneur or a provincial nominee, on
the basis of each of the factors listed in column I of Schedule
I, other than the factors set out in items 4 and 5 thereof;
9. Where an immigrant, other than a member of the family
class, an assisted relative or a Convention refugee seeking
resettlement, makes an application for a visa, a visa officer
may, subject to section 11, issue an immigrant visa to him and
his accompanying dependants if
(b) on the basis of his assessment in accordance with sec
tion 8
(i) in the case of an immigrant other than a retired person
or an entrepreneur, he is awarded at least fifty units of
assessment, or
(ii) in the case of an entrepreneur or a provincial nominee,
he is awarded at least twenty-five units of assessment.
11....
(3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not
awarded the number of units of assessment required by
section 9 or 10 or who does not meet the requirements of
subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is
awarded the number of units of assessment required by
section 9 or 10,
if, in his opinion, there are good reasons why the number of
units of assessment awarded do not reflect the chances of the
particular immigrant and his dependants of becoming success
fully established in Canada and those reasons have been sub
mitted in writing to, and approved by, a senior immigration
officer.
The factors referred to in paragraph 8(1)(c) are
education, specific vocational preparation, experi
ence, location, age, knowledge of English and
French, personal suitability and relatives.
Admissions to Canada are governed by Part II
of the Act. It provides in subsection 8(1) for the
burden of proof:
8. (1) Where a person seeks to come into Canada, the burden
of proving that he has a right to come into Canada or that his
admission would not be contrary to this Act or the regulations
rests on him.
Subsections 9(2) and (4) of the Act are also
relevant to an application for permanent residence.
They read:
9....
(2) Every person who makes an application for a visa shall be
assessed by a visa officer for the purpose of determining
whether the person appears to be a person who may be granted
landing or entry, as the case may be.
(4) Where a visa officer is satisfied that it would not be
contrary to this Act or the regulations to grant landing or entry,
as the case may be, to a person who has made an application
pursuant to subsection (1), he may issue a visa to that person,
for the purpose of identifying the holder thereof as an immi
grant or visitor, as the case may be, who, in the opinion of the
visa officer, meets the requirements of this Act and the
regulations.
The appellant put his appeal on several grounds
but I find it necessary to deal with only three of
them. The first is that the Trial Division erred in
refusing his application under section 18 notwith
standing that the visa officer had arrived at his
decision on the basis of an adverse assessment of
the Province of Ontario without first according
him any opportunity of correcting or contradicting
it. The visa officer, he submits, was obliged to act
fairly from a procedural standpoint (Nicholson v.
Haldimand-Norfolk Regional Board of Commis
sioners of Police, [1979] 1 S.C.R. 311; Martineau
v. Matsqui Institution Disciplinary Board, [1980]
1 S.C.R. 602) and that he had failed to do so in
acting in the manner described above.
The unchallenged evidence contained in para
graph 3(m) of the appellant's affidavit of February
25, 1984 is to the effect that the application had
been rejected because of the negative assessment
received from the Province of Ontario. That
assessment thus became of crucial importance in
the visa officer's decision. It is also confirmed by
the Commission's letter of January 25, 1983 that
the appellant was advised of the decision at the
interview in December 1982.
In dismissing the section 18 application the
learned Judge below had this to say at pages 8 and
9 of his reasons for judgment:
The information and opinion supplied by the provincial
authority must in turn be examined and assessed by the visa
officer together with any other information the officer has in
regard to the applicant and his business proposal. Here, the visa
officer had conflicting information before him. On the one
hand, the Ontario Ministry of Industry had expressed their
opinion that the proposed business was not viable. On the other
hand, the officer had information supplied by the applicant that
the business was operating in Hamilton, and despite financial
losses, was expected to do well. On the basis of this and other
information concerning the applicant, the visa officer formed
the opinion that the number of units of assessment awarded to
the applicant did not reflect his chances of becoming success
fully established in Canada. It is clear from the letters of
refusal that the visa officer refused the application on the basis
that Muliadi did not meet the requirements of the Act and
Regulations and not solely on the basis of his business proposal.
I note in passing that nothing in the record
indicates that the appellant had failed to achieve
twenty-five points or that he was ever assessed by
the points system. Further, counsel did not attempt
to support the decision on the basis that it was an
exercise of discretion by the visa officer. Indeed,
such a position was expressly disclaimed in argu
ment before us. The position taken was that the
appellant did not qualify as an "entrepreneur"
within the meaning of the definition and that that
was what the letter of refusal meant.
Returning to the matter of the Province of
Ontario assessment I do not view its receipt by the
visa officer as bad in itself. In fact its reception
was contemplated and even authorized by the
appellant at the time of his application and subse
quently. Nevertheless, I think it was the officer's
duty before disposing of the application to inform
the appellant of the negative assessment and to
give him a fair opportunity of correcting or con
tradicting it before making the decision required
by the statute. It is, I think, the same sort of
opportunity that was spoken of by the House of
Lords in Board of Education v. Rice, [1911] A.C.
179 in these oft-quoted words of Lord Loreburn
L.C., at page 182:
They can obtain information in any way they think best, always
giving a fair opportunity to those who are parties in the
controversy for correcting or contradicting any relevant state
ment prejudicial to their view.
Those words have application here even though a
full hearing was not contemplated. (Kane v. Board
of Governors (University of British Columbia),
[1980] 1 S.C.R. 1105, at page 1113; see also
Randolph, Bernard et al. v. The Queen, [1966]
Ex.C.R. 157, at page 164.)
In deciding whether the appellant was accorded
procedural fairness, it is necessary to examine the
legislative framework in which the visa officer was
required to decide the matter. Nowhere in that
framework is it laid down that there be a full oral
hearing before a decision is made. In fact, not even
an interview is contemplated except in the limited
circumstances set forth in factor 9 under Column I
of Schedule I authorized under paragraph 8(1)(c)
of the Regulations:
Units of assessment shall be awarded on the basis of an
interview with the person to reflect the personal suitability of
the person and his dependants to become successfully estab
lished in Canada based on the person's adaptability, motiva
tion, initiative, resourcefulness and other similar qualities.
On the other hand, I do not think that that ends
the matter. True, the appellant was not entitled to
come into Canada or to be fully heard on his
application. He had first to satisfy the visa officer
that his landing or entry into Canada would not be
contrary to the Act or the Regulations and that he
be given a visa. He endeavoured to do just that but
his efforts proved fruitless. In the circumstances,
though he was not entitled to a full hearing, I
think he should have had an opportunity of meet
ing the negative assessment by the provincial
authorities before it was acted upon by the visa
officer, for upon that assessment his application
turned. The duty to act fairly extends to this kind
of case. In this I would adopt the views expressed
by Lord Parker C.J. in In re H.K. (An Infant),
[1967] 2 Q.B. 617, at page 630:
This, as it seems to me, is a very different case, and I doubt
whether it can be said that the immigration authorities are
acting in a judicial or quasi-judicial capacity as those terms are
generally understood. But at the same time, I myself think that
even if an immigration officer is not in a judicial or quasi-judi
cial capacity, he must at any rate give the immigrant an
opportunity of satisfying him of the matters in the subsection,
and for that purpose let the immigrant know what his immedi
ate impression is so that the immigrant can disabuse him. That
is not, as I see it, a question of acting or being required to act
judicially, but of being required to act fairly. Good administra
tion and an honest or bona fide decision must, as it seems to
me, require not merely impartiality, nor merely bringing one's
mind to bear on the problems, but acting fairly; and to the
limited extent that the circumstances of any particular case
allow, and within the legislative framework under which the
administrator is working, only to that limited extent do the
so-called rules of natural justice apply, which in a case such as
this is merely a duty to act fairly. [Emphasis added.]
That statement of principle received the unani
mous approval of the English Court of Appeal
(consisting of Lord Denning M.R., Lord Wilber-
force and Phillimore L.J.) in Regina v. Gaming
Board for Great Britain, Ex parte Benaim and
Khaida, [1970] 2 Q.B. 417, at page 430. I think it
is applicable here.
The respondents further argue that the burden
of proof resting upon the appellant under the
statute makes a difference here and that he failed
to satisfy it. With respect, I do not think the
existence of that burden relieved the visa officer of
the duty to act fairly. The appellant did furnish
some information but the business was newly
established and its situation was in a state of
change. I think he did the reasonable thing by
making known to the authorities a means of
obtaining current information for purposes of the
assessment. In his letter of December 12, 1981 he
was at pains to furnish additional information
concerning the status of the business, even to the
extent of disclosing the name of the solicitor and of
the person "in daily management" from whom
"details" of the company and of its business was
available in Ontario. Despite this, as he afterward
learned, no "questioning or investigation" of the
business took place before it was assessed and no
one from the provincial government contacted the
appellant's business partners before the negative
assessment was made and submitted to the visa
officer. Had the appellant been informed of that
assessment before it was decided to reject his
application, he might have been able to look into
the matter and, possibly, to disabuse the visa
officer of his view that the business was not viable.
He might also have been in a position to tell the
visa officer that no inquiries or contact had been
made by the Ontario authorities. He had no way
of knowing the result of the assessment process
until informed of it by the visa officer in December
1982. By then the decision to reject his application
because of the unfavourable assessment had
already been made.
Secondly, the evidence before us strongly sug
gests that the decision to refuse the appellant's
application was made by a Government of Ontario
official rather than by the visa officer. That evi
dence appears in paragraph 3(m) of the appel
lant's affidavit of February 25, 1984. It relates to
what transpired at the appellant's interview of
December 1982 by the visa officer. He states:
I was told straight away by Mr. Lukie that my application was
being refused and he showed me as constituting the reason
therefore, a telex sent to him from what I understood to be the
Province of Ontario, refusing my application. I asked him, why
did he call me for an interview if an assessment by him was not
to be made, and he said he was very sympathetic to my case,
but he was sorry for as the decision was made by the authority
who sent the telex, there was nothing he could do about
it....The interview left me with no doubt that the decision (or
assessment) had not been made by him but rather by the person
or authority who sent the telex and that he had neither
authority or discretion in the matter. [Emphasis added.]
That evidence, as I have already observed, has not
been contradicted in any way by the respondents.
It is elementary that the decision on the applica
tion had to be made by the visa officer and that it
could not be delegated in the above fashion. The
visa officer appears to have allowed it to be made
by the person in Ontario from whom he received
information regarding the viability of the appel
lant's business plan. Though he was entitled to
receive information on that subject from that
source it remained his duty to decide the matter in
accordance with the Act and the Regulations. It
was therefore a serious error to allow the decision
to be made by the Ontario official rather than kept
in his own hands where it properly belonged. That
being so, I think the appeal should succeed on this
ground as well.
There is another reason why I think this appeal
should succeed. Though the December 22, 1982
letter announcing the decision is worded so gener
ally as to make it virtually impossible to know the
precise ground or grounds relied upon, the true
basis for rejecting the application become evident
at the hearing of this appeal. It is spelled out in
paragraphs 13, 14, and 18 of the respondents'
memorandum of fact and law:
13. It is submitted that for the Appellant to be assessed as an
entrepreneur, he must meet the definitional requirements
referred to in Regulation 2.
14. It is submitted that pursuant to that definition, the entre
preneur must intend and have the ability "to establish or to
purchase a substantial interest in the ownership of a business in
Canada whereby ... more than five Canadian citizens or
permanent residents will be continued in employment in
Canada."
18. It is submitted that the viability of a proposed business
venture in the Province of Ontario is one of the criteria which a
Visa Officer can rely on in assessing whether the definitional
requirements of the Regulations relating to "entrepreneur"
have been met. The Visa Officer abroad is in effect obtaining a
current appraisal on an aspect of the application not within his
own area of expertise.
I have no doubt that the visa officer was quite
entitled to decide whether the appellant was an
"entrepreneur" within the meaning of section 2 of
the Regulations. But in doing so, he was required
to take into consideration only that which is
authorized by the language of the definition and
not stray farther afield. Here, it seems to me, he
erred. That error appears from his letter of
December 22, 1982 for it is there stated that he
paid particular attention, inter alia, to "whether or
not employment opportunities for a significant
number of Canadians would be created" (empha-
sis added). With respect, the language of the
definition does not lay down any such requirement.
In respect of job creation it requires only that the
immigrant "intends and has the ability".
2. (1)...
(a) to establish or to purchase a substantial interest in the
ownership of a business in Canada whereby
(i) employment opportunities will be created in Canada for
more than five Canadian citizens or permanent residents,
or
(ii) more than five Canadian citizens or permanent resi
dents will be continued in employment in Canada ....
Plainly, there is nothing in this language requiring
the creation of employment opportunities for "a
significant number of Canadians". In his letter of
December 12, 1981 the appellant informed the
authorities that the company "has employed more
than 5 (five) Canadians for the time being, and
will employ more in the near future". His intention
appeared to be to open a second outlet in the
Toronto area where additional employees would be
required, for in his solicitor's letter of June 10,
1982 it is stated:
The second location would be expected to employ at least an
equal number of employees to the one in Hamilton and possibly
more ... On that basis, there would be at least 3 full-time and
3 permanent part-time positions in addition to Mr. Muliadi
involved.
It seems to me that by considering that the
appellant had to show he had the intention and
ability to create employment opportunities "for a
significant number of Canadians" (whatever that
may mean) the visa officer exceeded his jurisdic
tion and, accordingly, his decision cannot stand for
that reason as well. In my view, this case is
covered by the decision of this Court in Hui v.
Canada (Minister of Employment and Immigra
tion) [[1986] 2 F.C. 96 (C.A.)] (Court file No.
A-362-85) rendered March 3, 1986. There, the
decision of a visa officer was quashed and the
matter was returned for reconsideration on the
ground that he had exceeded his jurisdiction by
introducing into the definition of "entrepreneur"
an extraneous element not authorized by its
language.
In view of the foregoing, I am unable to agree
with the decision below. I think this is a proper
case for the relief sought. I would therefore allow
this appeal with costs both here and in the Trial
Division and would order that the decision of the
respondents or some one or more of their officers
as disclosed in the Canadian High Commission's
letter of December 22, 1982, be quashed and that
the respondents and their officers consider and
process the appellant's application for permanent
residence in Canada in accordance with the Immi
gration Act, 1976 and the applicable Regulations
on the basis that the ability to create employment
opportunities for a significant number of Canadi-
ans is not a requirement for qualifying an appli
cant as an entrepreneur within the meaning of the
applicable definition and that the appellant is en
titled to a fair opportunity of contradicting or
correcting or of refuting the credibility of the
assessment of his business plan made by the Prov
ince of Ontario before a decision is made on his
application, and on the further basis that the
decision must be made by a visa officer and not by
anyone from whom he receives information.
THURLOW C.J.: I agree.
MACGUIGAN J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.