Federal Court Decisions

     IMM-2228-96

B E T W E E N:

     KWOK KI MAK

     Applicant

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

REASONS FOR ORDER

CAMPBELL J.

         This is an application for judicial review of a decision of a visa officer dated May 23, 1996 in which the applicant was refused an immigrant visa in the entrepreneur category. The applicant seeks an order setting aside the decision on the basis that a breach of fairness occurred by the visa officer not fully considering his entrepreneurial intentions and ability in applying for the visa.

     The applicant is a citizen of Hong Kong. On August 14, 1995, he submitted an application for permanent residence under the entrepreneur category. Included in the application were his wife and two daughters.

     The applicant has been employed since 1980 with Remy China and Hong Kong Ltd., the Hong Kong branch of a multinational corporation involved in the production and distribution of liquors, wines and cognacs. Since 1987, the applicant has worked as one of four sales managers. He manages a department having annual sales of CAD $26,445,000 and is responsible for sales to dealers and wholesalers in Hong Kong. He is responsible for all aspects of operations within his department, including staffing, budgeting and forecasting, market analysis, promotion and customer relations, among other things. He reports to the General Sales Manager who in turn reports to the chairman of Remy.

     On May 23, 1996, in the interview with the visa officer, the applicant provided an updated statement of worth indicating a net worth of CAD $859,000 as well as bank letters indicating that his wife had savings of CAD $141,000. He also confirmed his salary was $73,684.

     At the interview, the applicant was asked about his business plan. He indicated that he wished to establish an export business to export house wine from Canada to markets in southeast Asia and China. He indicated that he wished to invest $150,000 to $200,000 in capital and wished to acquire a warehouse of 2000 sq. feet. He indicated to the officer that he visited Canada in 1990, conducted market research at that time, which needed to be updated, and had retained a chartered accountant in Ontario to perform further market research. The applicant also advised the officer that he did not have any current suppliers but that he had good connections with importers in Hong Kong. The applicant also indicated that his brother owned a textile business and was also applying for permanent residence. If successful, he stated that he intended to set up a business with his brother.

     The visa officer questioned the applicant about his duties at Remy. She determined that he was a middle-level manager and asked him whether he had ever owned a business. The visa officer indicated to the applicant that she did not think that his application would be successful, but she also assessed him as an independent applicant. However, since he did not have sufficient points (45) she refused his application. She also considered humanitarian and compassionate grounds but found these to be insufficient.

     By letter dated May 30, 1996, the applicant's application was refused on the basis that he did not meet the definition of "entrepreneur". The letter stated:

You have been a middle manager with Remy China & HK limited since 1980. You never have (sic) experience in operating or controlling a business. Your plan to set up a business in Canada was vague. It is therefore reasonable to conclude that you would be unable to manage a business in Canada that would be successful.

     The only issue in this application is whether the visa officer failed to properly assess the applicant's application thereby breaching the duty of procedural fairness.

     There are several sections in the Immigration Act and in the Immigration Regulations dealing with "entrepreneurs". The definition of entrepreneur is set out in s.2(1) of the Regulations:

"entrepreneur" means an immigrant

(a)      who intends and has the ability to establish, purchase or make a substantial investment in a business or commercial venture in Canada that will make a significant contribution to the economy and whereby employment opportunities will be created or continued in Canada for one or more Canadian citizens or permanent residents, other than the entrepreneur, his dependants and

(b)      who intends and has the ability to provide active and on going participation in the management of the business or commercial venture.

[Emphasis added]

     Section 8(1)(c) of the Regulations provides that entrepreneurs are assessed on a set of factors, and by s.9(1)(b)(ii) an entrepreneur need only attain 25 units as compared to independent immigrants, who must attain 70 points.

     The applicant argues that the visa officer breached the duty of fairness by failing to consider whether the applicant has the ability to purchase a business for which he could provide active and on-going participation in the management of the business. The applicant submits that the visa officer had a duty to assess whether the applicant had the ability to purchase a business, once she determined that he did not have the ability to establish one.

     The applicant relies on Chen v. Minister of Employment and Immigration (1993) 20 Imm. L.R. (2d) 290 which dealt with the definition of "investor". This definition requires an individual to have "successfully operated, controlled or directed a business or commercial undertaking". In his reasons, Mr. Justice Rothstein stated:

It is therefore incumbent on the visa officer to assess each aspect separately to determine whether the applicant falls under at least one of the criteria. In my view, the visa officer did not do so in this case. She seems to have concluded from the fact that the applicant was not involved in the operation of the farm that he did not control or direct it. In coming to her conclusion, she failed to give distinct meaning to each of the words operated, controlled or directed. [Emphasis added]

     Rothstein J. further stated that the visa officer must question the applicant specifically on each of the criteria separately, and failure to do so results in a breach of procedural fairness.

     The respondent, on the other hand, submits that the visa officer is not required to "go on a fishing expedition" with respect to the other possible means of admitting the applicant. In addition, since the visa officer already determined that the applicant does not have the management skills necessary, the respondent states that the visa officer was not under a duty to further consider the applicant's application.

     It is my opinion that the respondent's argument must fail. Given that the duty of fairness requires a visa officer to allow the potential immigrant to correct any evidence and requires the officer to inform the applicant of a negative assessment, to require a visa officer to also assess the applicant on the other criterion in the definition of "entrepreneur" does not amount to a "fishing expedition".

     When assessing the application of a potential "entrepreneur", the duty of fairness requires a visa officer to assess the applicant, not only on the applicant's ability to establish a business but also the ability to purchase or make a substantial investment in a business or commercial venture. Since in this case the visa officer did not do this, I find a reviewable error occurred.

     Accordingly, I set aside the decision herein, and refer the matter back to another visa officer for redetermination.

                         Douglas R. Campbell

                         Judge

VANCOUVER

April 4, 1997