Muliadi v. Canada

Muliadi v. Canada (Minister of Employment & Immigration), 1986 CarswellNat 218 (Tab 23)

• Application by Indonesian applicant, Muliadi, for PR status under the entrepreneur class
• Regulations referred to employing more than 5 Canadians, which Muliadi was already doing by having opened a franchise in Hamilton and employing over 5 people
• Ontario government was to evaluate the viability of his business plan
• Applicant was called to an interview and immediately told that his application had been rejected by the Ontario government
• Application was rejected based on fax received by visa officer from Ontario government instructing the visa officer to refuse him based on not employing a “significant number” of Canadians, terminology which was not in the Act
• Turns out the Ontario government had never been to the site of the franchise or called any of Muliadi’s business partners to make inquiries re: the viability of the business
• Moreover, was not the role of the Ontario government to make the final visa decision
• Appeal granted on three grounds:

o First, procedural fairness concerns re: having an opportunity to respond to the Ontario government’s negative viability assessment: “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 subsequently. 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 contradicting it before making the decision required by the statute.”

o Second, immigration officer was not permitted to delegate his discretionary authority re: the granting or denial of the visa, to the Ontario government

o Third, the regulations indicate that to qualify as an entrepreneur, “5 or more” Canadians or PRs to be employed, not “a significant number” – this exceeded the officer’s jurisdiction to require this.
Muliadi in other case-law

• Adetunji v. Canada (Citizenship and Immigration), 2012 FC 708 (CanLII),

o [37] As for the other alleged breach of procedural fairness resulting from the fact that the Officer relied on “extrinsic evidence” with respect to the causes of food poisoning without proper disclosure of the information and without providing the Applicant an opportunity to respond, I am also of the view that it ought to be rejected. First of all, it seems to me that characterizing the definition of “food poisoning” found in a dictionary as extrinsic evidence is a little bit of a stretch. It has nothing to do with the kind of information the use of which was found to be detrimental to an applicant in cases such as Muliadi v Canada (Minister of Employment and Immigration), [1986] 2 FC 205 (available on QL) (FCA) and Haghighi v Canada (Minister of Citizenship and Immigration), 2000 CanLII 17143 (FCA), [2000] 4 FC 407 (available on CanLII) (FCA). In those cases, what was at stake was information obtained from an outside party and internal Ministry reports relied upon in making discretionary decisions. In the case at bar, the information is no more than a simple verification of terminology, and the terms came directly from the Applicant’s own documentary evidence.