Visa officers act in an administrative function and therefore have a duty to act fairly. Although their decisions can be reviewed by the courts, the limited scope of review is summarized in the following hallmark Supreme Court of Canada decision, and which recently has been referenced in a number of judicial review applications involving business applications.
MAPLE LODGE FARMS v. GOVERNMENT OF CANADA [1982] 2 S.C.R. p.2.
This is an appeal from a decision of the Federal Court of Appeal dismissing an appeal from a decision of the Federal Court, Trial Division which refused to grant a motion by the appellant requesting the issuance of a writ of mandamus ordering the Minister of Economic Development responsible for Industry, Trade and Commerce to issue an import permit.
Facts: The appellant applied for a supplementary import permit under s.8 of the Export and Import Permits Act which would allow for the importation of live chickens, having a weight of less than five pounds per chicken. Appellant claims that the chickens are essential to the continued operation of his business.
Issues: 1) Whether or not the Minister has any discretion respecting the issue of permits under the Export and Import Permits Act and Regulations. 2) If such discretion is found to exist, whether it was exercised according to law.
Held: The appeal should be dismissed.
Reasoning: Section 8 of the Export and Import Permits Act, confers upon the Minister a discretion as to whether or not to issue an import permit. While the minister may be subject to terms and conditions under R4 of the Act, and section 3 which prescribes the information to be furnished by applicants for permits, these are altogether different from conditions which qualify or eliminate his discretion as to whether to grant a permit. Section 8 confers a discretionary authority to issue import permits and does not create a duty to issue them upon the fulfilment of certain conditions.
At page 7 of the decision, Justice McIntyre enunciates the conditions required for judicial review:
"It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere."
In the immigration field, and particularly business immigration applications, this reasoning has been recently applied on numerous occasions to refuse requests for judicial review. In the case of To v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 696 (Q.L.) an appeal from the denial of an application for permanent residence, was refused. In To, the applicant applied as an entrepreneur immigrant from Hong Kong. The immigration officer, in refusing the application, was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada.
Similar reasoning was applied in Chung v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1723 (Q.L.) where an application for residence under the Self-Employed provisions of the Act, was refused. The visa officer determined that the applicant did not have the ability to establish or purchase a business in Canada that will create an employment opportunity for himself and will make a significant contribution to the economy or the cultural or artistic life in Canada. The applicant had been employed for several years in as a colorist and a hairdressing apprentice in a family owned business in Hong Kong. In refusing the application for residence, the visa officer concluded that a license to work as a hairdresser was required and that it was questionable when and if applicant would obtain the necessary license due to his lack of English language skills. The application for judicial review was refused.
In the recent ruling of Etemadi v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 359 (Q.L.), an application for judicial review of a decision of a visa officer was refused. The applicant made an application for residence in the Entrepreneurial/Business category. The applicant had intended to operate a business exporting medical equipment from Canada to central Asia. The visa officer was not convinced that the applicant had the ability to establish a viable business in Canada. This decision on the finding by the officer that the applicant had only dabbled in the importation of medical equipment into Iran. The applicant's experience of operating a successful fertility clinic in Tehran was acknowledged as a positive factor but would not help the applicant in establishing a business in Canada. Although the letter of refusal from the visa office was found to be inadequate by the Court, a subsequent letter from the Program Manager remedied the error.
In Kuo-Ting v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 569, the entrepreneur applicant who had experience as a manager of operations of a production facility was assessed by the evaluating officer at the Canadian Embassy in Mexico City as not possessing the ability to start and/or manage a business in Canada.
A similar conclusion was drawn by the visa office in Buffalo, New York for an entrepreneur applicant with experience operating an import and distribution business in the United States, and in managing a leather manufacturing facility in Pakistan: Qayum v. Canada (minister of Citizenship and Immigration) [1997] F.C.J. No. 587. The negative decision in Qayum which was upheld by the Federal Court, was based on the failure by applicant to produce financial statements concerning his ongoing businesses in the United States. As a result, the visa officer determined that she could not make an appropriate assessment concerning the applicant's ability to establish a business operation in Canada.
In summary, immigration decisions cannot be overturned unless there is clear evidence that the visa officer acted unfairly, arbitrarily or exceeded his/her jurisdiction without regard to the totality of the evidence. In judicial review applications the court is not permitted to substitute its own finding for the visa officer's without clear evidence of errors or arbitrary decision-making.
