Durve v. Canada (Citizenship and Immigration)

Durve v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2014-09-15
Neutral citation
2014 FC 874
File numbers
IMM-1332-13
Notes
A correction was made on August 10, 2015
Reported Decision
Decision Content
Date: 20140915
Docket: IMM-1332-13
Citation: 2014 FC 874
Ottawa, Ontario, September 15, 2014
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
RAJENDRA GOVIND DURVE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] This application for judicial review addresses the residency requirements for permanent residents prescribed by section 28 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and their application to permanent residents who spend periods of time out of Canada working for their own business. The applicant, Rajendra Govind Durve, seeks judicial review of the decision of the Appeal Division of the Immigration and Refugee Board of Canada (the “Board”) dated January 28, 2013 which found that he had failed to comply with the residency requirements and which upheld the decision to not renew his permanent resident status.
Overview [2] Mr Durve, a citizen of India, landed in Canada in 2002 and was later granted permanent resident status. He incorporated a business best described as a “one-man operation” in Ontario in 2004. He frequently travelled to India and other countries for significant periods of time. In May 2009, Citizenship and Immigration Canada did not renew his permanent resident card because he failed to meet the residency requirement of 730 days in Canada in a five year period. The Board upheld that decision. In Durve v Canada (Citizenship and Immigration Canada), 2011 FC 995, [2011] FCJ No 1226 [Durve #1], the Court allowed the judicial review and remitted the appeal back to the Board for a new hearing (de novo).
[3] The Board conducted a de novo hearing and again dismissed the appeal on the basis that Mr Durve did not meet the residency requirements of section 28 of the Act; he was not physically present in Canada for 730 days and he did not otherwise comply because he was not outside Canada employed on a full-time basis by a Canadian business. The Board found that his business was not an “ongoing operation in Canada”. This decision is now the subject of judicial review.
[4] The applicant submits that the Board: denied him procedural fairness; erred in interpreting the provisions of the Act and formulating the test for an ongoing operation in Canada; erred in applying that test; and unreasonably refused to exercise its discretion based on humanitarian and compassionate [“H&C”] grounds.
[5] I have considered the Board’s decision, the extensive record and the arguments of the parties and I find that there was no breach of procedural fairness and the decision is reasonable.
[6] The Board undertook a lengthy and careful examination of a vast amount of documentary evidence. In response to the guidance provided by Justice Gauthier in Durve #1, the Board considered several factors or indicia to determine whether Mr Durve’s one-man business met the requirements of an ongoing operation in Canada. While a range of factors should be considered, no single factor is determinative as one-man and other small businesses will vary. In the present case, Mr Durve was self-employed and he was the business. He claimed to be working for his Canadian business from wherever he was located. The reality was that he was seldom in Canada for more than several days at a time (with four visits of approximately one month) in the five year period and there was little evidence to show any connection between the advice or consultant work he provided to his clients and Canada. The Board’s determination is factual, based on all the evidence, and there is no basis to disturb its findings.
[7] The Board also reasonably concluded that there were no H&C considerations at play to warrant the exercise of its discretion to exempt Mr Durve from the residency requirements.
[8] Although the applicant submits that he would be an asset to Canada, and there is no reason to doubt this, he simply did not observe the residency requirements, of which he was well aware and which are not onerous, nor did he establish that his business has sufficient connection to Canada to be considered an ongoing operation in Canada.
[9] For the more detailed reasons that follow, the application is dismissed.
Background [10] Mr Durve landed in Canada on May 25, 2002. In March 2008, he applied to renew his permanent resident [PR] status before its expiry, but he left the country for business before receiving a decision. In March 2009, he was advised that Citizenship and Immigration Canada [CIC] did not have enough information to establish that he had met his residency obligation of 730 days in the five year span between April 1, 2004 and March 31, 2009. Later in March 2009, he applied to the Canadian High Commission at New Delhi for a travel document to return to Canada. In June 2009 he was advised that his PR status was revoked along with his application for a travel document. His appeal of that decision was rejected. In Durve #1, at para 23 Justice Gauthier found that the Board had not considered all the evidence and that the very brief “decision does not meet the requirements of justification and transparency applicable under the standard of reasonableness.”
[11] In a de novo hearing, the Board considered the same five year span – April 1, 2004 to March 31, 2009. The Board considered all the evidence; the appeal records from the first hearing, three exhibits entered at the first hearing, and new disclosure consisting of six volumes of over 1000 pages.
The Applicant’s facts [12] Mr Durve first applied to immigrate to Canada as a Foreign Skilled Worker. He describes himself as a financial advisor, with the specialty of promoting Indo-Canadian business relations. He was issued an immigrant visa and landed in Canada on May 25, 2002. In 2004, after two years of looking for employment, he registered a financial consultancy business as 1623709 Ontario Inc, with its corporate office listed at the residence of his settlement advisor, Mr Kapoor.
[13] During the five year period at issue, 2004-2009, Mr Durve made approximately 25 to 30 international business trips from Canada. He noted that his consulting contracts included:
• An October 16, 2004 agreement with Mississauga-based Skyport Financial Group Inc (“Skyport”);
• An ongoing contract with the multi-national company Adept Consulting Services Inc (“Adept”);
• An ongoing contractual relationship with Mumbai-based Time Media and Entertainment (PvT) Ltd (“Time Media”); and,
• An ongoing contract with Mumbai-based Lakeland Chemicals (India) Ltd, (“Lakeland”); and
[14] The applicant’s own evidence before the Board was that:
• He travelled to India for several reasons: for recuperation following medical treatment; to assist his mother following his father’s death and, more generally, to tend to his aging mother, whom he visits five to six times a year;
• He regularly travels to other countries, including the US, several European countries, Thailand, the UK, and the UAE, in order to meet clients and potential clients and to assist with and oversee the implementation of financial business systems. This includes some personal travel of short duration on his trips to Thailand;
• He frequently returns to Canada and has a residence here. He divested himself of his property and some of his parent’s properties in India. He purchased a condominium in Canada, which was only completed in 2011, and remains unfurnished pending his permanent resident status. He stays at hotels or at his settlement advisor’s home when he is in Canada; and,
• Canada is the base of his business operations. He wound down his consultancy business in India. His efforts to build his business in Canada have suffered due to his uncertain immigration status and the economic downturn. He does not operate business accounts in India, although he has personal accounts there. When in India, he uses his late father’s office. He has income in both Canada and India and files taxes in both jurisdictions.
The Relevant Legislative Provisions [15] The relevant provisions of the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations are set out below:
The Act
28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period.
(2) The following provisions govern the residency obligation under subsection (1):
(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are
(i) physically present in Canada,
(ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,
(iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,
(iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or
(v) referred to in regulations providing for other means of compliance;
(b) it is sufficient for a permanent resident to demonstrate at examination
(i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;
(ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and
(c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.
28. (1) L’obligation de résidence est applicable à chaque période quinquennale.
(2) Les dispositions suivantes régissent l’obligation de résidence :
a) le résident permanent se conforme à l’obligation dès lors que, pour au moins 730 jours pendant une période quinquennale, selon le cas :
(i) il est effectivement présent au Canada,
(ii) il accompagne, hors du Canada, un citoyen canadien qui est son époux ou conjoint de fait ou, dans le cas d’un enfant, l’un de ses parents,
(iii) il travaille, hors du Canada, à temps plein pour une entreprise canadienne ou pour l’administration publique fédérale ou provinciale,
(iv) il accompagne, hors du Canada, un résident permanent qui est son époux ou conjoint de fait ou, dans le cas d’un enfant, l’un de ses parents, et qui travaille à temps plein pour une entreprise canadienne ou pour l’administration publique fédérale ou provinciale,
(v) il se conforme au mode d’exécution prévu par règlement;
b) il suffit au résident permanent de prouver, lors du contrôle, qu’il se conformera à l’obligation pour la période quinquennale suivant l’acquisition de son statut, s’il est résident permanent depuis moins de cinq ans, et, dans le cas contraire, qu’il s’y est conformé pour la période quinquennale précédant le contrôle;
c) le constat par l’agent que des circonstances d’ordre humanitaire relatives au résident permanent — compte tenu de l’intérêt supérieur de l’enfant directement touché — justifient le maintien du statut rend inopposable l’inobservation de l’obligation précédant le contrôle.
The Regulations
61. (1) Subject to subsection (2), for the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act and of this section, a Canadian business is
(a) a corporation that is incorporated under the laws of Canada or of a province and that has an ongoing operation in Canada;
(b) an enterprise, other than a corporation described in paragraph (a), that has an ongoing operation in Canada and
(i) that is capable of generating revenue and is carried on in anticipation of profit, and
(ii) in which a majority of voting or ownership interests is held by Canadian citizens, permanent residents, or Canadian businesses as defined in this subsection; or
(c) an organization or enterprise created under the laws of Canada or a province.
(2) For greater certainty, a Canadian business does not include a business that serves primarily to allow a permanent resident to comply with their residency obligation while residing outside Canada.
(3) For the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act, the expression “employed on a full-time basis by a Canadian business or in the public service of Canada or of a province” means, in relation to a permanent resident, that the permanent resident is an employee of, or under contract to provide services to, a Canadian business or the public service of Canada or of a province, and is assigned on a full-time basis as a term of the employment or contract to
(a) a position outside Canada;
(b) an affiliated enterprise outside Canada; or
(c) a client of the Canadian business or the public service outside Canada.
[…]
61. (1) Sous réserve du paragraphe (2), pour l’application des sous-alinéas 28(2)a)(iii) et (iv) de la Loi et du présent article, constitue une entreprise canadienne :
a) toute société constituée sous le régime du droit fédéral ou provincial et exploitée de façon continue au Canada;
b) toute entreprise non visée à l’alinéa a) qui est exploitée de façon continue au Canada et qui satisfait aux exigences suivantes :
(i) elle est exploitée dans un but lucratif et elle est susceptible de produire des recettes,
(ii) la majorité de ses actions avec droit de vote ou titres de participation sont détenus par des citoyens canadiens, des résidents permanents ou des entreprises canadiennes au sens du présent paragraphe;
c) toute organisation ou entreprise créée sous le régime du droit fédéral ou provincial.
(2) Il est entendu que l’entreprise dont le but principal est de permettre à un résident permanent de se conformer à l’obligation de résidence tout en résidant à l’extérieur du Canada ne constitue pas une entreprise canadienne.
(3) Pour l’application des sous-alinéas 28(2)a)(iii) et (iv) de la Loi respectivement, les expressions « travaille, hors du Canada, à temps plein pour une entreprise canadienne ou pour l’administration publique fédérale ou provinciale » et « travaille à temps plein pour une entreprise canadienne ou pour l’administration publique fédérale ou provinciale », à l’égard d’un résident permanent, signifient qu’il est l’employé ou le fournisseur de services à contrat d’une entreprise canadienne ou de l’administration publique, fédérale ou provinciale, et est affecté à temps plein, au titre de son emploi ou du contrat de fourniture :
a) soit à un poste à l’extérieur du Canada;
b) soit à une entreprise affiliée se trouvant à l’extérieur du Canada;
c) soit à un client de l’entreprise canadienne ou de l’administration publique se trouvant à l’extérieur du Canada.
[…]
The Decision under Review [16] The Board’s 49-page decision is comprehensive. A summary of the decision is set out below to provide the necessary context for the applicant’s arguments regarding the Board’s alleged errors.
[17] The Board thoroughly canvassed the submissions of the parties and the guidance provided by Justice Gauthier in Durve #1 noting that Justice Gauthier had directed it to be more precise about the indicia to consider when applying the relevant provisions of the Act and the Regulations in the small business context. The Board also noted that Justice Gauthier had indicated that the question whether there is an ongoing operation in Canada is factual, to be determined by the nature and the degree of the business activities in each individual case and that no particular indicia is determinative.
[18] The Board then noted the applicant’s position and submissions, including:
• While not physically present in Canada, he satisfies the residency obligation because he is outside Canada due to work for his Canadian business, pursuant to subparagraph 28(2)(a)(iii) of the Act.
• His business is incorporated under Ontario law and is ongoing. The purpose of incorporation was not to enable him to meet his residency obligations.
• There is no requirement that his Canadian business be “for profit” or that work be demonstrated through proper business contracts. Although he does not make a lot of money from his business, this does not mean that he did not work for his Canadian business.
• His ongoing business activity need not take place in Canada. He continues to work from wherever he travels and that this work is full-time. His situation is analogous to, for example, Canadian mining businesses with international assets.
• He does not have a residence outside Canada.
• He is a “one-man show” and knows his clients personally.
• His time is spent working for his Canadian business on contracts, developing contracts, and developing business projects to bring business to Canada. Some of this work is not remunerated.
• He has the financial means to support himself while cultivating clients.
[19] As a preliminary issue, the Board addressed Mr Durve’s allegation that he had been denied the opportunity to clarify his financial statements in response to the submissions of the respondent about discrepancies in those documents. The Board noted that an appeal is a de novo hearing and is adversarial in nature. The applicant bears the onus to establish his case on a balance of probabilities with clear and cogent evidence. The Board noted that it was familiar with financial and corporate records and capable of understanding the financial documents provided by the applicant without further clarification. The Board rejected the applicant’s argument that the evidence should not be considered by the Board because it would be unfair and found that it was contrary to the appeal process to suggest that evidence on the record, which had been provided by the applicant himself, should not be considered. The Board noted that the decision of Justice Gauthier had directed it to re-determine the appeal on the basis of “all of the facts and the evidence before the decision-maker”.
[20] The Board then focussed on the key issues: whether the appellant had satisfied the residency requirements of section 28 as informed by section 61 of the Regulations; and, if not, whether sufficient H&C grounds warranted special relief.
[21] The Board considered whether the appellant had satisfied his residency requirement because he had been “outside Canada employed on a full-time basis by a Canadian business” in accordance with subparagraph 28(2)(a)(ii). The Board noted that this requires consideration of definitions set out in the Regulations and raises four questions:
• Is the Canadian business a corporation incorporated under the laws of Canada (paragraph 61(1)(a) of the Regulations)?
• Is the Canadian business a corporation and does it have ongoing operations in Canada (paragraph 61(1)(a) of the Regulations)?
• Is Mr Durve a full-time employee of the Canadian business or under contract to provide services to the Canadian business (subsection 61(3))?
• Is Mr Durve an employee or under contract with the Canadian business and is he assigned on a full-time basis as a term of either his employment or contract to a position outside of Canada or a client of the Canadian business outside of Canada ? (paragraph 61(3)(c))?
Canadian business; ongoing operations in Canada [22] The business was incorporated under the laws of Ontario; the issue for the Board was whether the business has or had ongoing operations in Canada.
[23] The Board first distinguished the applicant’s business, being a personal services corporation, from a large company with multiple shareholders, directors and employees. It noted that operations in Canada may not be self-evident where a corporation has a single shareholder, director or employee, where no tangible product is produced and where the business is provided by that sole shareholder, director or employee.
[24] It noted, echoing Justice Gauthier’s reference in Durve #1 to Faeli v Canada (Minister of Citizenship and Immigration), [2005] IADD No 267, that the term “ongoing” must have some meaning beyond the mere fact of incorporation. The Board acknowledged the importance, as identified by Justice Gauthier at para 15, “of examining the nature of an applicant’s activities while outside of Canada in relation to the business of his or her Canadian company.”
[25] The Board considered the ordinary and common sense meaning of the term “ongoing” and the dictionary definition, as “continuing activities”. It also considered the requirement of “in Canada” and concluded that “ongoing operations in Canada” requires that the company’s continuing activities be fully located in Canada.
[26] The Board found that Mr Durve’s product is the services he provides and his brain is his primary tool. Therefore, he need not be in any particular place to provide his services.
[27] The Board examined the evidence and testimony including Mr Durve’s description of his consultancy services, which included financial consultancy, domain and software advice and the business relationships with Skyport and Adept and found that, while it is clear what he does when he is outside Canada, it is not clear what he does in Canada or how his activities outside Canada relate to his business in Canada.
[28] It noted at para 34: “[y]et, when the panel considers the totality of the evidence, including the transcript from the first IAD hearing, the disclosure in both hearings and the submission of the appellant’s counsel it remains largely unclear just what the appellant actually does”.
[29] The Board extensively reviewed the documents regarding Mr Durve’s work for Adept and Skyport.
[30] The Board found that the letters of understanding with Adept did not assist in ascertaining the business activities of 1623709 Ontario Inc. and how they constituted ongoing operations in Canada. The Board reiterated that it was looking at the nature of his activities outside of Canada in relation to the business of his Canadian corporation. The Board concluded that:
The activity of a “representative” or “agent” or “employee” of an Ontario corporation marketing the IT services and/or technology of an American corporation to third parties in the Middle East has no relationship to the Canadian company. There is no nexus between the ongoing business of the Canadian corporation and these marketing contracts. Here the corporate vehicle has not been chosen primarily for tax purposes, but rather for immigration purposes.
[31] The Board also noted that the 2008 invoices do not show that accounting services were provided to Adept and do not match Mr Durve’s narrative that he provided nine months of business promotion services to Adept.
[32] With respect to Skyport, the Board found that the relationship ended in December 2007, two years before the end of the five year span, with no evidence that it was ever renewed. The Board found that the one aspect of the contract with Skyport that could have become an ongoing business operation in Canada never materialized. The Board considered the terms of the contract as well as Mr Durve’s testimony and concluded that he had failed to generate a sufficient client-base for Skyport in India, UK, the US, and Dubai. Instead he merely undertook bookkeeping projects for Skyport on an hourly basis and relied on resources in India to do so.
[33] The Board also considered the role of the settlement advisor, Mr Kapoor. Mr Durve used Mr Kapoor’s home address as his business address and he stayed with Mr Kapoor often while in Canada. The Board noted that Mr Kapoor answered the phone and took the mail for the business office in Canada for a nominal fee of $200 per month. The Board found that this was not an indicator of any form of ongoing operation in Canada. The Board concluded, after considering other evidence, including cancelled checks and an undated service agreement, that Mr Kapoor was more of a service provider and was not an employee.
[34] The Board found that various letters from other businesses submitted by Mr Durve only generally described his business activities and did not demonstrate that he performed paid work for these individuals or businesses. With respect to Time Media and Lakeland, the Board noted that neither business indicated that it had a relationship with 1623709 Ontario Inc, but only mentioned a personal relationship with Mr Durve.
[35] The Board accepted that much of Mr Durve’s work is done on an informal basis given his personal relationships with his clients and that some work related to business development is unpaid. However, the Board found that there was insufficient evidence of a business with an ongoing operation in Canada. The Board found that the business had no nexus to Canada, but was instead tied to Mr Durve’s own physical location, which could be Canada, India, or elsewhere.
[36] The Board stated: “[…] for the purposes of proving that ones Canadian business is conducting business abroad for Indian based companies, the lack of formal contracts, letters of understanding etc. goes to the sufficiency of evidence . […] it is this very lack of documentary evidence of all the work conducted by 1623709 Ontario Inc. that calls into question the appellant’s claim to having a business with an ongoing operation in Canada”.
[37] After considering the nature of the business activities and finding the evidence lacking, the Board noted that the next most important indicia of an “ongoing operation in Canada” is revenue, as demonstrated by corporate and financial records. The Board noted that other documents, such as utility bills and credit card bills, are of lesser probative value, especially since the applicant did not provide much context to situate them in his business activities. The Board scrutinized the corporate and financial records of 1623709 Ontario Inc and found them to be unreliable because they were prepared by the applicant himself, were unaudited and had no explanatory notes. The Board also found some discrepancies in certain financial statements that could not be reconciled with the invoices.
[38] The Board considered Mr Durve’s submission that there is no requirement to make a profit. The Board did not make any finding that profit was a requirement. The Board noted, however, that there was no indication of how Mr Durve’s work to obtain future business was related to the ongoing operations in Canada of his incorporated business.
[39] The Board concluded that Mr Durve had failed to show any ongoing operation in Canada which had any form of nexus to the stated activity of the business. The Board further found that because the two requirements set out in paragraph 61(1)(a) of the Regulations for a “Canadian business” - that of an ongoing operation in Canada, had not been met on a balance of probabilities, there was no need for it to consider the application of sub-paragraph 28(2)(a)iii of the Act, as guided by subsection 61(3) of the Regulations, to assess whether the applicant had been outside of Canada employed on a full-time basis by a Canadian business .
[40] Despite this finding, the Board nevertheless considered whether subparagraph 28(2)(a)iii applied.
Employed on a full-time basis by a Canadian business [41] Subsection 61(3) guides the application of subparagraph 28(2)(a)(iii), i.e., whether the permanent resident complies with the residency obligation because he or she is outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province.
[42] The Board noted that the jurisprudence on the meaning of “employed on a full-time basis by a Canadian business”, Canada (Citizenship and Immigration) v Jiang, 2011 FC 349, [2011] FCJ No 560 [Jiang] and Bi v Canada (Citizenship and Immigration), 2012 FC 293, [2012] FCJ No 366 [Bi], was not helpful to the current facts. In Jiang and Bi the permanent residents were employed by larger enterprises that had businesses and employees both in Canada and abroad, and it was possible to view them as being on assignment when abroad. In contrast, Mr Durve occupies his position whether he is in Canada or abroad and his “assignment” is entirely dependent on where he chooses to live for the purposes of doing his work.
[43] Despite the inapplicability of the jurisprudence to Mr Durve’s circumstances, the Board took a broad look at the notion of “employed on a full-time basis” and concluded that Mr Durve’s work would not qualify because much of it was spent in business development for no specific client and it did not otherwise relate to the ongoing operations of 1623709 Ontario Inc in Canada. The Board rejected the argument that unpaid work is still work, noting that such logic would enable Mr Durve to spend all his time doing research and business development abroad while fulfilling his residency obligation.
[44] The Board noted:
Since the appellant defines his business in respect of the financial consultancy services he provides his clients to the extent that he is doing unpaid work for no specific client it cannot be said that he is employed on a full-time basis.
[…]
If there was no or little work aboard (sic) for his Canadian business then logically the justification for the appellants remaining outside Canada was also absent.
[45] The Board also compared the applicant’s claimed Canadian personal income and his claimed business activity and found that his personal income exceeded his business income, suggesting that he had income from sources other than his Canadian business (1623709 Ontario Inc) and supporting the view that he was not working full time for his Canadian business. The Board concluded that the full extent of the applicant’s work abroad is unknown.
Other Considerations [46] The Board found that despite Mr Durve’s view that his home base is in Canada, this was not the case because he had only spent 279 days in the relevant five year span in Canada. He had no place of residence in Canada and had given the name and address of his settlement advisor on his application for a travel document. The Board found that although the applicant may have sold his own residence in India, he continued to have a residence in India shared with his mother. The Board acknowledged that he purchased two condos in the Toronto area in 2006, but only took possession of one in 2011. The other purchase was cancelled due to construction delays. Buying a condominium under development in Canada does not create establishment nor prove any abiding connection.
Humanitarian and Compassionate Considerations [47] The Board noted that, initially, the applicant had made some effort to establish himself in Canada but that this did not develop and he was merely an occasional visitor. He spent the vast majority of his time abroad. The Board acknowledged his obligations to his parents who were elderly and in poor health, but noted that this would or should have been anticipated when he came to Canada and that his family had the means to hire help. The Board concluded that if his familial duties took precedence over his residency obligations to Canada, he should not expect much sympathy. The Board further noted that his family would suffer no hardship if he loses his permanent residence status. He is unmarried and has no family in Canada. His mother remains in India and his only sister is in the United States. The Board remarked that it is not readily apparent what hardship would follow from his loss of permanent resident status, as he has always been able to work wherever he goes. The Board considered the stigma of being a single man in India, but found that his status was a personal decision. The Board also acknowledged his efforts in pursuing his appeal but did not find this to be unique or special and did not warrant an exercise of discretion pursuant to H&C factors.
[48] In conclusion, the Board reiterated that, beyond incorporating his company in Canada, it is not evident that Mr Durve’s business ever had an ongoing operation in Canada. The Board rejected an analogy with Canadian mining companies with overseas operations, which involve many Canadian and foreign-based employees. However, the Board did not rule out that one-man operations could meet the requirements of section 61 of the Regulations and noted that the determination relies on the specific facts. The Board found that, in general, unless a one-man operation can establish with clear, cogent and convincing evidence that the Canadian business has ongoing operations in Canada, it cannot use a Canadian incorporation to satisfy the residency obligation. The Board provided two examples of the type of ongoing operation in Canada that could or might be sustained by one-man operations: an accountant’s business with an established and ongoing operation in Canada which is contracted to provide services to a Canadian business’s operations outside Canada on a temporary basis; and a one-man trading company that distributes goods in Canada but requires periodic absences from Canada for the purposes of buying and quality control.
[49] The Board concluded that Mr Durve’s business is as described in subsection 61(2) a “business that serves primarily to allow a permanent resident to comply with their residency”.
The Applicant’s Overall position [50] Mr Durve submits that the Board breached its duty of procedural fairness by not providing an opportunity for him to clarify the discrepancies in his financial statements and by not permitting him to address the Board’s concerns about the Skyport contract which Mr Durve submits had a nexus to Canada.
[51] He further submits that the decision is not reasonable; the Board did not follow the guidance provided by Justice Gauthier in Durve #1, it imported additional requirements into the test for on-going operation in Canada, including that the business be fully located in Canada; erred in applying the test, including by ignoring some evidence; and, erred in determining that the applicant was not fully employed by his Canadian business while outside Canada. The applicant argues that it should be sufficient for the purposes of section 28 for the business to be a “functioning entity” in Canada.
[52] Finally, the Board erred in its analysis and in not exercising its discretion in favour of Mr Durve on H&C grounds.
The Respondent’s Overall position [53] The respondent submits that there was no breach of procedural fairness; the Board in its de novo hearing considered all the evidence which had been provided by the applicant and his testimony both at the earlier hearing and the de novo hearing, and the applicant had full opportunity to produce the evidence he relied on.
[54] The Board’s decision was reasonable; it properly interpreted the provisions of section 28 guided by the definitions in the Regulations, it identified the indicia or factors it considered in determining whether the applicant had an ongoing operation in Canada and reasonably found, due to the insufficiency of the evidence, that he did not.
[55] The Board also reasonably found that there were no special circumstances to warrant the exercise of its discretion on H&C grounds.
Standard of Review [56] Issues of procedural fairness are reviewable on a standard of correctness.
[57] Issues of mixed fact and law are reviewable on a standard of reasonableness. The jurisprudence emphasizes that where the standard of reasonableness applies, the role of the Court is to determine whether the decision “falls within ‘a range of possible, acceptable outcomes which are defensible in respect of the facts and law’ (Dunsmuir, at para 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.” (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 59). The Court does not re-weigh the evidence or remake the decision.
The Issues [58] The applicant has raised three issues:
1) Did the Board deny the applicant procedural fairness?
2) Did the Board err in formulating and applying the residency requirements of section 28- in particular subparagraph 28(2)(a)(iii) and the meaning of a Canadian business as an “ongoing operation in Canada”?
3) Did the Board err in its analysis of the H&C factors and is its determination unreasonable?
Did the Board deny the applicant procedural fairness? [59] Mr Durve submits that the Board erred in not providing him with an opportunity to respond to deficiencies and discrepancies in his financial records that were raised by the respondent. He argues that the Board did not make any clear credibility findings against him and should not have simply accepted the respondent’s arguments which indirectly undermined his evidence.
[60] He further submits that he was not made aware of the Board’s concerns regarding his contract with Skyport and not provided an opportunity to clarify this work, which had a nexus to Canada.
[61] The respondent submits that the onus was on the applicant to demonstrate that the decision to deny his PR status was not reasonable and that his appeal should be allowed. He had the opportunity to reply to the differences and discrepancies that were identified in his financial records, but chose not to do so. Mr Durve and his counsel were aware of the concern raised in the respondent’s submissions and could have dealt with this evidence in reply submissions but did not do so.
[62] The respondent adds that although there was no breach of procedural fairness regarding the financial statements, the concerns about the financial records do not affect the Board’s key findings that the Canadian corporation had no ongoing operation and that there is no connection between its business activities and Canada.
There was no breach of procedural fairness [63] The principles of procedural fairness do not require the Board to confront the applicant with the accounting differences and discrepancies identified in his own financial records. The applicant was alerted to these discrepancies by the respondent’s submissions and had ample opportunity to disclose additional documentary evidence or to call other witnesses. He did not do so. Nor did his counsel question him at the hearing to elaborate. He was well represented and he produced a record to the Board of more than 1,000 pages, as well as the record from the first appeal. He cannot now claim a breach of procedural fairness.
[64] Moreover, Mr Durve describes himself as a financial consultant and, therefore, would have understood and could have further explained the accounting differences and discrepancies identified by the respondent. These records had been provided by Mr Durve and he was aware of their contents; they did not take him by surprise, nor did the respondent’s submissions.
[65] The Board noted that while it could have benefitted from specialized accounting knowledge, its own experience and expertise was more than adequate to allow it to analyze the applicant’s submissions and evidence. I agree that this was within the Board’s experience.
[66] With respect to Mr Durve’s submissions that the Board failed to put its concerns about his relationship with Skyport to him, I do not agree that there was any breach of procedural fairness. The onus is on him to establish that his business was an ongoing operation in Canada. The Board noted that he provided very little testimony about Skyport