Date: 19980323
Docket: IMM-4685-97
BETWEEN:
WAI CHUNG SO,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of a visa officer denying the Applicant permanent residence in Canada under the entrepreneurial category.
[2] In a letter addressed to the Canadian Consulate in Hong Kong and dated March 7, 1996, the Applicant applied for permanent residence as an "entrepreneur". In the letter, his counsel explained that the Applicant and his brother had visited Canada in 1995 and during the course of their stay, had entered into an agreement to purchase "The Swiss Inn", a motel and restaurant located in the community of Chetwynd, British Columbia. Their intention was to exploit the business as a joint venture.
[3] On October 18, 1996, the Applicant attended an interview conducted by Visa Officer Ernest Alston.
[4] Shortly after the interview, Mr. Alston was transferred to another unit in the Immigration Section of the Consulate and as a result, the Applicant's case was reassigned to visa officer Mary Coulter, who was also responsible for reviewing the Applicant's brother's application for permanent residence. As Ms. Coulter explains in her affidavit,1 she opted to proceed with a "fresh" assessment of the case and to this end, decided to reinterviewed the Applicant.
[5] The second interview took place on October 18, 1996. Its purpose was to determine whether the Applicant satisfied the definition of "entrepreneur" found in s. 2(1) of the Immigration Regulations, 19782 which states:
| "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 and his dependants, and b) who intends and has the ability to provide active and ongoing participation in the management of the business or commercial venture. |
" entrepreneur " désigne un immigrant a) qui a l'intention et qui est en mesure d'établir ou d'acheter au Canada une entreprise ou un commerce, ou d'y investir une somme importante, de façon à contribuer de manière significative à la vie économique et à permettre à au moins un citoyen canadien ou résident permanent, à part l'entrepreneur et les personnes à sa charge, d'obtenir ou de conserver un emploi, et b) qui a l'intention et est en mesure de participer activement et régulièrement à la gestion de cette entreprise ou de ce commerce; |
[6] The following is gleaned from Ms. Coulter's affidavit and her CAIPS notes.
[7] During the course of the interview, Ms. Coulter confirmed that the Applicant's personal net worth was approximately $143,000 (CDN) as was stated in his Personal Net Worth Statement.
[8] The Applicant also stated that he and his brother had made so far a combined investment of $23,000 (CDN) in The Swiss Inn. They planned to borrow approximately $300,000 (CDN) . His brother would also invest $120,000 (CDN) and the Applicant, $140,000 (CDN). In addition, the Applicant stated that his father would invest approximately $700,000 (CDN) for renovations and start up costs. When Ms. Coulter expressed doubt as to the Applicant"s ability to make a substantial investment because he would have to invest almost all of his net worth leaving himself insufficient funds to settle in Canada, the Applicant replied that he would have no expenses in Canada as he would be living in a hotel.
[9] Ms. Coulter also questioned the Applicant with respect to his work experience in order to determine his ability to provide active and ongoing management in the proposed business venture. The Applicant told her that he joined Sheraton Towers Hotel as a valet runner in 1985. In 1987, he was promoted to senior valet runner; in 1988, to guest valet supervisor; in 1992, to supervisor where he received complaints and supervised valets; and in 1993 to head supervisor where he supervised two supervisors and reported to the Assistant Manager - Laundry. He resigned in 1993.
[10] The Applicant also informed Ms. Coulter about the restaurant he established in China with his brother as a joint venture with the Chinese government in August 1993. The restaurant was called the Happy Together Restaurant. The Applicant claimed that the business was profitable in its one year operation. To corroborate his claim, he provided the visa officer with a one page unaudited financial statement. Asked why the restaurant"s operations had ceased despite its profitability, the Applicant responded that he had not received any of the profits because the money was used to pay bribes in order to keep the restaurant open.
[11] In July 1994, the Applicant returned to Hong Kong and since then, he has been employed as the Supervisor, Housekeeping and Laundry Department at the Royal Garden Hotel where he reports to the Laundry Manager.
[12] At the conclusion of the interview, Ms. Coulter informed the Applicant of her decision to deny his application and gave him detailed reasons. By letter dated May 19, 1997, she confirmed her decision in writing and gave the following reasons:
| I have determined that you do not meet the definition of entrepreneur for the following reasons... |
| For most of your career you have remained an employee of the Sheraton Towers Hotel and the [sic] The Royal Garden hotel. From the letter provided from the Sheraton Hong Kong, you held the positions of Valet Runner, Senior Valet Runner, Guest Valet Supervisor, Supervisor and Head Supervisor between 1985 and 1993. You stated during your interview that in the most senior of these positions, you reported to the Assistant Manager, Laundry. You have also been employed as Supervisor, Housekeeping - Laundry Department, The Royal Garden hotel, Hong Kong since 1994. As per a letter from the Personnel Manager of the hotel, you report directly to the Laundry Manager. From our discussion of your job duties at interview, you have supervisory responsibilities relating to the Housekeeping - Laundry Department of the hotel and report directly to the Laundry Manager. This leads me to the conclusion that your decisions do not affect the direction of the hotel. I am not satisfied therefore that the level of managerial skill you have acquired, is sufficient in scope and breadth to provide you with the ability to manage a business in Canada. |
| The fact that you intend to make an investment of $140 000 CDN in a business in Canada and were able to provide proof of a total personal net worth of only $143 044 leads me to believe that you do not have the financial ability to both make a substantial investment in a business and have sufficient funds to settle in Canada. |
Finally, the fact that you claim to have held 40% of a restaurant in the PRC which operated for one year only and whose profit's were marginal at best, does not convince me that you have acquired the skills necessary to manage an entire inn in British Columbia.3
ANALYSIS
[13] In To v. Minister of Citizenship and Immigration,4 the Federal Court of Appeal recently confirmed that the appropriate scope of review of these types of cases is the one enunciated by McIntyre J. in Maple Lodge Farms Limited v. Government of Canada et al.:5
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.6
[14] In the case at bar, I believe that the visa officer properly exercised her discretion and that the Court"s intervention is not warranted.
[15] First, visa officer Coulter acted in accordance with the principles of natural justice when she decided to proceed afresh with the Applicant"s case and invite him to attend a second interview. She was cognizant of the importance of her decision-making role and the need of satisfying herself of the Applicant"s intention and abilities uninfluenced by any considerations that visa officer Alston might have previously reached on his assessment of the case.
[16] Second, I believe that the visa officer properly considered the definition of "entrepreneur". Each applicant must fully meet the criteria established in the definition of "entrepreneur". As I stated in Wai Hung So v. Minister of Citizenship and Immigration ,7 the visa officer did not have to take into account the ability to make a living when assessing if the Applicant comes within the definition of "entrepreneur". The definition in s. 2(1)a) does not contemplate the effect of the business venture on the personal life of an applicant but contemplates its contribution to the economy in terms of the employment opportunities created or continued for one or more Canadians other than the "entrepreneur" and his dependents.
[17] With respect to the first part of the definition of "entrepreneur", the visa officer did not err in concluding that the Applicant did not have the ability to make a substantial investment in the joint venture. An "entrepreneur" must have sufficient capital to establish a particular business. In the present case, the Applicant had a net personal worth of $143,044 and intended to invest $140,000. Not only is $140,000 a marginal investment in a $1,200,000 joint venture, but it is highly unlikely the Applicant could invest $140,000. It would leave him very little money for settlement costs.
[18] With respect to the Applicant"s ability to provide active and ongoing participation in a business venture, the visa officer was entitled to consider as a factor the Applicant"s previous work experience8 and his success - or lack of - in a similar business.9 Her conclusions were open to her from the material before her. Therefore, the Court"s intervention is not warranted. As previously stated, it is not up to the Court to interfere with the exercise of discretion by a statutory authority merely because it might have exercised it differently.
[19] Finally, I do not believe that the visa officer breached her duty of fairness in failing to give the Applicant an opportunity to address any concerns she had.
[20] In support of its argument, the Applicant relied on Muliadi v. Canada (Minister of Employment and Immigration).10 In that case, the Applicant had applied for permanent residence under the "entrepreneur" category. His business proposal had been referred to the Ontario government for an assessment as to its viability. The assessment was negative and as a result the application was denied. However, the Applicant was never informed of the negative assessment and never had a fair opportunity to respond to it. The Federal Court of Appeal held that this amounted to a violation of procedural fairness. A visa officer has a duty to inform the Applicant before disposing of his application of a negative assessment and give him a fair opportunity of correcting or contradicting it before rendering the final decision.
[21] The present case differs from the situation in Muliadi. As argued by the Respondent, the visa officer did specifically question the Applicant regarding each of the criteria in the definition of "entrepreneur". She told the Applicant that she was not satisfied that he had the ability to make a substantial investment and have sufficient funds to settle in Canada. The Applicant addressed the visa officer"s concerns but was unable to convince her. The visa officer also accepted letters from the Applicant"s previous employers describing his duties. She informed him that these work experiences did not give the Applicant an opportunity to develop the ability to provide active and ongoing management in a business venture because his decision-making responsibilities were limited in scope.
[22] As stated by McKeown J. in Kashani v. Minister of Citizenship and Immigration:11
The applicant asserts that he was denied fairness by not being given an opportunity to respond to the visa officer"s concerns. However, the onus is on the applicant to prove that he has the ability to establish a business in Canada and will create an employment opportunity for himself and will make a significant contribution to the economy. It was open to the visa officer to find that the applicant did not have a realistic plan of action and did not understand the jewellery market conditions in Canada. It was also open to him to find that the applicant did not have the necessary management skills in business that would make a significant contribution to Canada. Thus, there was no need for the visa officer to request the applicant to provide further evidence on these points. The onus was on the applicant, and not on the visa officer.12
[23] MacKay J. expressed a similar view in Yu v. Canada (Minister of Employment & Immigration):13
In my view, there is no ground for arguing unfairness in the process merely because the visa officer at an interview of the applicant does not stress all of the concerns he may have that arise directly from the Act and Regulations that he is bound to follow in his assessment of an application. The Act and Regulations pertinent to admission are available to applicants whose task is to establish to the satisfaction of the visa officer that they meet the criteria set out, and that their admission to Canada would not be contrary to the Act.14
[24] For the foregoing reasons, the application for judicial review is dismissed.
[25] Both counsels agreed that this was not a matter for certification of a serious question.
JUDGE
OTTAWA, ONTARIO
March 23, 1998
__________________1 Respondent"s Application Record, Tab 1 at para. 12.
3 Applicant"s Application Record, Tab 2.
4 (May 22, 1996) A-172-93 (F.C.A.).
7 (March 23, 1998), IMM-2049-97 (F.C.T.D.).
8 Kuo-Ting v. Canada (Minister of Citizenship and Immigration) (May 7, 1997), IMM-1345-96 (F.C.T.D.); Fok v. Canada (Minister of Citizenship and Immigration) (November 21, 1997), IMM-3676-97 (F.C.T.D.).
9 Ling v. Canada (Minister of Employment & Immigration) (1995), 26 Imm.L.R. (2d) 205 (F.C.T.D.).
11 (April 16, 1997), IMM-2580-96 (F.C.T.D.).