Case Comments: Summarization of some recent court rulings

Assessing Business Experience: One of the most essential criterion for success in an application for a Canadian permanent resident visa under the "entrepreneur" category is that of "business experience."

Previous success in business and business management is considered one of the leading indicators of future success in Canada as an entrepreneur. As a recent Federal Court case demonstrates, business experience should not be discounted simply because it was acquired in a culture or society that has little in common with Canada.

In Jafar Agha Yazdanian v. Canada (Minister of Citizenship & Immigration), the applicant, an Iranian citizen, had applied for a Canadian permanent resident visa under the Entrepreneur category. The applicant had been running his own businesses in Iran for over 30 years, and had accumulated an estimated net worth in excess of $4,000,000 (CDN).

After an interview with a visa officer, the applicant’s application was refused on the ground that the applicant did not meet the definition of "Entrepreneur." More specifically, the visa officer stated in her refusal letter that although the applicant clearly had extensive (and successful) business experience in Iran, she was not satisfied that the applicant could achieve similar success in Canada. One of the principal reasons cited by the visa officer was the applicant’s limited first-hand knowledge of Western management and business practices.

In overturning the decision of the visa officer, the judge stated that although experience in the "West" may be a factor to examine in assessing an application from a non-western background, it is not the sole relevant factor. If it were, then too many applications would be denied from successful business people who have excelled in business in other cultures. In this particular situation, the judge concluded that greater weight should have been placed on the applicant’s proven success as a businessman, including his substantial net worth. Given the clear evidence of his abilities in the business world, the judge held that it would only be reasonable to conclude that the applicant would be able to retain his expertise when transferring to "Western" business practices.

Failure to Attend Selection Interview:

As many applicants for immigration are aware, certain Canadian immigration processing posts have a substantial backlog of cases to process, and this backlog often leads to extensive delays in scheduling selection interviews. As a recent Federal Court case demonstrates, once a selection interview is scheduled, applicants should do their absolute best to attend or, at least, give reasonable notice of a scheduling conflict.

In Diana Voskanova v. Canada (Minister of Citizenship & Immigration), the applicant had received a letter inviting her to a selection interview in New York on May 1, 1998. The letter specifically warned that failure to attend could result in the application being refused and that any request to transfer the interview to another location had to be made at least 2 weeks prior to May 1, 1998. On April 30, 1998, the New York consulate received a letter from the applicant’s attorney advising that the applicant would not attend the May 1, 1998 interview and requesting that the file be transferred to the Detroit processing post. The visa officer refused to transfer the file to Detroit and rejected the application on the ground that the applicant had failed to attend her scheduled interview on May 1, 1998. The applicant appealed the visa officer’s decision.

In assessing the merits of the applicant’s appeal, the Court placed great emphasis on the fact that the letter inviting the applicant to her interview made it abundantly clear as to the appropriate delays for requesting a file transfer. Had the applicant respected these delays, the Court stated that the visa officer would have been obliged to at least consider the request and, so long as the reasons for the request appeared reasonable, even grant it. Having failed to respect these delays, the Court held that the visa officer was under no obligation to consent to the transfer request.

Furthermore, the Court found that the visa officer had conducted a reasonably thorough assessment of the applicant prior to the interview date, and that the visa officer did require a face-to-face meeting with the applicant in order to alleviate some concerns about the applicant’s qualifications. As a result, the Court held that the applicant’s failure to attend her selection interview constituted reasonable grounds for the visa officer to reject her application.