Date: 20010207
Docket: IMM-3244-99
Neutral Citation: 2001 FCT 37
Ottawa, Ontario, Wednesday the 7th day of February 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
XI SEN LUO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
DAWSON J.
[1] Mr. Luo is a forty-five year old citizen of the People's Republic of China who applied for permanent residence in Canada in the investor category in March of 1998. He brings this application for judicial review of the decision of Gregory Chubak, then Vice-consul at the Canadian Consulate General in Hong Kong ("visa officer") dated May 27, 1999, whereby Mr. Luo's application for permanent residence in Canada was refused.
THE FACTS
[2] Mr. Luo is one of the founders of the Yongfeng Knitting Mill of Daijang ("the Mill"), a textile factory in China established in 1985, and one of three equal shareholders in the venture. The material submitted in support of his application for permanent residence, including a Business Performance Assessment Report on the Mill prepared by KPMG Peat Marwick Huazhen, was to the effect that Mr. Luo was responsible for the operation of the machinery, labour and production while another shareholder was the legal representative and general manager of the factory, and the third shareholder was the sales manager. Mr. Luo's main duties were described as being responsible for the operation and maintenance of machinery, products' worker management and personnel administration, and production management. His main responsibility was said to be to ensure production quality.
[3] Mr. Luo was interviewed by the visa officer on May 27, 1999. Mr. Luo's duties, responsibilities and involvement at the Mill were discussed at that interview. The CAIPS notes, supported by the affidavit of the visa officer, are to the following effect:
| PI IS THE TITULAR AND ACTUAL PRODUCTION MANAGER. PI ABLE TO SPEAK KNOWLEDGABLY [sic] OF PRODUCTION MATTERS INCLUDING THE DATES AT WHICH NEW KNITTING MACHINES WERE PURCHASED AND INSTALLED. PI EXPLAINED HIS RESPONSIBILITIES IN TERMS OF MACHINE MAINTENANCE AND REPAIR, CHANGING AND REPLACING NEEDLES, ENSURING PRODUCTION SCHEDULES ARE MET, SUPERVISING PRODUCTION STAFF, AND MONITORING QC OF FINISHED PRODUCT. ... PI EXPLAINED THAT THE GM WAS RESPONSIBLE FOR OVERSEEING ALL PRODUCTION, SALES, SOURCING, AND FINANCIAL MATTERS. PER R.2.1, THIS GM COULD BE SEEN TO OPERATE, CONTROL, OR DIRECT THE BUSINESS. THE THIRD PARTNER, WIFE'S COUSIN, IS RESPONSIBLE FOR MARKETING AND PURCHASING MATTERS ONLY. PI ASKED TO EXPLAIN THE DIVISION OF MANAGERIAL LABOUR AGAIN TO WHICH HE REITERATED THAT HE WAS RESPONSIBLE, PER ABOVE, PRODUCTION MATTERS AND THAT ANOTHER PARTNER TOOK CARE OF MARKETING AND THE GENERAL MANAGER OVERSAW ALL OPERATIONAL, FINANCIAL, AND DEALING WITH OUTSIDE AGENCIES (TAX DEP'T ETC). |
[4] While Mr. Luo met all of the required financial criteria for immigration as an investor, the visa officer was not satisfied that Mr. Luo "successfully operated, controlled or directed a business". Mr. Luo's application for permanent residence was therefore refused.
[5] The material portion of the visa officer's refusal letter is as follows:
| The Immigration Regulations, 1978 define "investor" as follows: |
| "investor" means an immigrant who |
| (a) has successfully operated, controlled or directed a business, |
| [...] |
| I have determined that you do not meet this definition. I am not satisfied that you control, operate or direct a business, as required by the definition of investor. Specifically, I am not satisfied that you exercise responsibility consistent with that of the control, operation, or direction of a business in your role as production manager for Yongfeng Knitting Mill of Dajiang. Functions germane to the operation of this business, such as financial management, tax administration, and matters related to the overall operation of this business are not under your authority but rather are the responsibility of the general manager. Notwithstanding that you are one of three coequal minority shareholders, your responsibilities as production manager are subordinate and limited to production management. Thus, I am not satisfied that your position as general Manager and Chief Representative is a position which amounts to the control, operation or direction of a business. I have therefore concluded that you do not meet the requirements of the definition of an investor contained in the Immigration Regulations, 1978. |
THE ISSUES
[6] Only one issue was pursued in oral argument and that was whether the visa officer erred in law by misinterpreting the definition of an investor.
ANALYSIS
[7] The definition of an investor has been considered by this Court. In Cheng v. Canada (Secretary of State) (1994), 83 F.T.R. 259 (F.C.T.D.) at paragraph 8, Cullen J. found that where an applicant applying as an investor "was responsible for the operation of an integral, profit-generating, part of the business, then he ought to have met the criteria absent some other factor". Justice Cullen expressly noted that it was not intended by the definition that an applicant must operate a wholly owned business or a wholly owned undertaking. In Tsai v. Canada (Minister of Citizenship and Immigration) (1997), 136 F.T.R. 36 (F.C.T.D.) Pinard J., reviewing a decision of Gregory Chubak, noted at paragraph 6 that there was "no requirement for an applicant in this category to have had sole or final decision-making power in a company".
[8] In my view, the visa officer committed a reviewable error by rejecting Mr. Luo's application on the grounds specified in the refusal letter. The visa officer failed to provide cogent reasons as to why Mr. Luo's duties were not equivalent to responsibility for the operation of an integral, profit-generating part of the business. The visa officer further erred by in effect requiring Mr. Luo to have performed responsibilities relating to the financial management and tax administration of the business. No such requirement exists in the Immigration Regulations, 1978, SOR/78-172 or the case law.
[9] Counsel for the Minister in his able argument submitted that it was open to the visa officer to discount Mr. Luo's responsibilities on the basis that there was also a general manager who oversaw the operation of the business as a whole. However, as Mr. Luo's counsel also ably submitted, it is not necessary for the applicant to have the sole or final decision-making power in the company (see: Tsai, supra). Moreover, this does not appear to have been a factor in the visa officer's decision. The visa officer seemed to accept Mr. Luo's authority with respect to production management, but concluded that such authority was insufficient as it was subordinate to a general manager who had responsibility for things such as financial management, tax administration, and the overall operation of the business.
[10] For these reasons, I have concluded that the application for judicial review should be allowed on the terms set out below. Neither party suggested certification of a question and none is certified.
JUDGMENT
[11] IT IS HEREBY ORDERED AND ADJUDGED THAT:
| 1. The application for judicial review is allowed and the decision of the visa officer, Gregory Chubak, dated May 27, 1999, is hereby set aside, without costs to any party. |
| 2. This matter is to be referred back to the visa post for reassessment by a different visa officer in accordance with the principles articulated by this Court in Cheng v. Canada (Secretary of State) (1994), 83 F.T.R. 259 (F.C.T.D.) and Tsai v. Canada (Minister of Citizenship and Immigration) (1997), 136 F.T.R. 36 (F.C.T.D.). |
| 3. Such reassessment is to be completed within 180 days of the date of this judgment, provided that the applicant responds in a timely manner to any requests for documents, information or convocation for an interview, and provided that the statutorily required checks are completed. |
"Eleanor R. Dawson"
Judge