Date: 19990421
Docket: IMM-3849-98
BETWEEN:
CHANG WEN HSU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.
[1] This is an application for judicial review of the refusal of a visa officer to grant permanent residence in the entrepreneur category to the applicant on July 15, 1998. The applicant seeks an order quashing the decision of the visa officer and a writ of mandamus directing the respondent to process his application in accordance with the law.
FACTS
[2] The applicant applied for permanent residence in the self-employed category at the Canadian Consulate General in Buffalo on April 8, 1997. He attended a selection interview with a visa officer on February 12, 1998. The interview was conducted with the help of an interpreter, since the applicant did not speak English. At that time, he informed the visa officer that he wished to be assessed as an entrepreneur. An entrepreneur is defined at section 2 of the Immigration Regulations, 1978 as follows:
| 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 on going participation in the management of the business or commercial venture. |
[3] According to the visa officer"s affidavit dated September 8, 1998, the applicant never completed secondary school. He claimed to be a mechanic, but could not show any proof of his qualifications in that trade. The applicant has owned a motor parts business in Taipei since 1984 and intended to establish a similar business in the Hamilton or the Niagara Falls region.
[4] The applicant presented his business license and financial documents at the interview. Although these documents showed a date of incorporation of May 2, 1984 and referred to shareholders, the applicant maintained that he was the sole owner of the business.
[5] The applicant"s balance sheet for 1994 showed an accumulated loss of NT$ -108,718. He could not give a logical explanation for this figure. Financial documents indicated that the applicant lost money in 1995, but made profits of CDN$ 10,202 in 1994 and CDN$ 15,505 in 1996. He said he made a profit in 1997, but had no documents to substantiate his claim. The applicant had savings of CDN$ 170,000.00 with which he planned to start his business and support his family in Canada. He explained that this money came from private investments, including one referred to as "CROP". He was unable to provide any proof of these investment, nor describe "CROP" and how he made money from it. His wife held real estate property valued at approximately CDN$ 482,000.00. There was no indication that they intended to sell this property to increase their investment value.
[6] In light of these findings, the visa officer was not satisfied that he had the ability to establish a successful business in Canada that would contribute to the Canadian economy, and that in her opinion, he did not meet the definition or the requirements of an entrepreneur.
[7] Furthermore, the visa officer found that the applicant was unable to speak knowledgeably about his daily business activities, such as his inventory and budget, dealing with his clients and his suppliers, and hiring staff. The applicant only mentioned that he had a small business and had one employee/technician who worked with him. As a result, the visa officer informed the applicant that he failed to demonstrate has the ability to provide active and on-going participation in the management of a business and how his business would make a significant contribution to the economy of his area of destination.
[8] The applicant takes issue with the credibility of the visa officer and the finding that he failed to demonstrate a capacity to operate a successful business.
CREDIBILITY
[9] The applicant submits that he was not afforded a fair and thorough assessment by the visa officer. Specifically, he appears to claim that he was not questioned about his business management ability, the possible disposition of his wife"s real estate property and was not provided an opportunity to clarify the matter of the shareholders.
[10] The visa officer claims in her affidavit that these matters were discussed at the interview. The applicant argues that this affidavit should not be relied upon, since the visa officer"s recollections lack credibility. The visa officer conducted the interview on February 12, 1998, at which time she took notes. She reviewed the file on June 15, 1998 and rendered her decision on the same day. Thus, there is a four month delay from the time of the interview and the time of the decision. The visa officer normally does four interviews per day. Therefore, according to the applicant, the visa officer"s recollections are not reliable, unless they were based on the notes she took at the interview. He relies on Madame Justice Reed"s statement in Parihar v. M.E.I1., regarding the perception of an immigration official as opposed to an applicant on an interview:
| In addition, it is alway somewhat troubling to see affidavits such as that in question here, which are prepared some considerable time after the event by officials who must interview a great number of people over the course of several months. Certainly, insofar as memory is concerned, one would expect that the individuals being interviewed would have clearer memory of what occurred (it being a unique experience for them) than the person doing the interviews. |
| (...) After carefully reviewing the material, I have decided to accept the version of events as set out in the affidavit filed in support of the applicants" motion. As I have noted, the applicants" memory of the events is more likely to be better than that of the immigration officer. Mr. Akerstrom"s affidavit is not supported by any objective evidence arising at the time of the interview. I would not want it to be thought that I am casting any doubt on Mr. Akerstrom"s attempt to accurately reconstruct what occurred. I have simply concluded that the applicants" memories of the event are likely to be sharper. |
[11] The applicant raises that at cross examination, the visa officer could not remember the length of the interview, this information not being in her notes. Yet, she was able to testify that she reviewed the totality of the evidence, despite this information not being inscribed in her notes. He further claims there is no indication in the visa officer"s notes that he was sufficiently and thoroughly questioned about his managerial and business capacity and his daily operations. The notes do not reveal if the visa officer questioned the applicant as to whether his wife would sell her real estate property, nor is there indication that she considered the value of this property. There is no indication in her notes that she gave him the opportunity to clarify the mention of shareholders and his assertion that he is the sole owner. Finally, the visa officer declared in her affidavit that the applicant failed to provide a logical explanation for the accumulated loss of 1994. However, when cross-examined, she could not recall what was illogical about the explanation.
[12] In assessing credibility, one must weigh the version of the applicant against the version of the visa officer. The applicant filed a short affidavit dated August 25, 1998 for the purpose of these proceedings. His affidavit consists of a list of questions he claims he was asked by the visa officer. The aforementioned matters are not listed in his account. I find that the applicant"s account of the questions asked to him by the visa officer does not coincide with the more detailed notes taken by the officer at the time of the interview. The notes include information that could not have been gleaned had the questions asked to the applicant been as limited as he claims. For example, the applicant does not mention being asked about the origin of his investment fund. Yet, the visa officer"s notes include a reference to the "CROP" scheme and other financial investments. The notes also refer to the applicant"s employee and business losses and profits, while the applicant declares that the questions on his business were solely focussed on the nature of his work and the taxation aspect. As well, he claims in his affidavit that he does not know the name of the place where he intends to start his Canadian business, whereas his application for permanent residence and the visa officer"s notes indicate that he sought to establish himself in Hamilton or the Niagara Falls region. Finally, according to the notes, the applicant was asked about a previous application for immigration to Canada. His affidavit is silent on the subject. Evidently, the scope of the interview was much broader than asserted by the applicant in his affidavit. For this reason, I accept the version of the visa officer.
[13] First, in the absence of an overriding error, it must be assumed that the visa officer considered all relevant evidence that was before her. The fact that she did not expressly indicate in her notes that she reviewed all the materials does not constitute an error in itself.
[14] The visa officer declared that she provided an opportunity to the applicant to clarify the reference to shareholders and to explain the accumulated loss of 1994. She also stated that she asked the applicant about the origin of his investment fund. The visa officer"s claim is confirmed by her notes, which read as follows:
| Subj claims that he will invest CDN$ 170,000 into his venture. Has presented 4 band deposits for an amount of US$ 122,257.04. Subj cld not explain how he accumulated that amount. He has a small business which makes 10 to 15,000 a yr in profit. Says that sometimes he loses money. Also involved into private investment "crop" (?). Or other financial investment. |
[15] The visa officer maintained at cross-examination that she asked the applicant on his daily business. Her notes taken at the interview seem to confirm this. They state:
| Subj claims that he has only one employee, a mechanic/technician. Says he is also a mechanic but he cannot prove it. He could not provide more details about his daily business. |
[16] While the notes do not specifically mention that the applicant was interrogated about clients, suppliers, inventory and budget, the visa officer claims that those are question she asks every applicants in this category. I see no reason to disbelieve her.
[17] The visa officer believes she asked the applicant whether the wife"s property would be sold, in view to decide whether to include these funds in the assessment. Her notes are silent on the subject. In any event, the question of the visa officer"s recollection on this subject is moot. The applicant wrote in his application for permanent residence that he intends to invest $170,000 in his Canadian business. He maintains this assertion in his affidavit dated August 25, 1998. Any alleged intention to dispose of the property to increase the value of the investment is belied in the affidavit, and therefore any possible failure to take the property into account in the assessment is without consequence.
[18] The applicant benefited in my view, from a thorough assessment. His submission fails.
UNREASONABLENESS
[19] The visa officer concluded that the applicant failed to provide any evidence that he could run a successful business and had operated a successful business in Taiwan. This conclusion, according to the applicant, does not cohere with the visa officer"s acknowledgment that he ran a profitable motor parts business in Taipei, nor with the documents he tendered in the file. These documents included trial balances, income statements, balance sheets and a business license. These documents were marked with the applicant"s seal and their legitimacy was never challenged.
[20] The finding of the visa officer is not unreasonable. The applicant made relatively small profits and suffered a loss in 1995. He showed a substantial, unexplained accumulated loss in 1994. He was unable to discuss the basic daily operations of his business. Despite the documents, it was open to the visa officer to doubt his capacity to establish a business in Canada that would make a significant contribution to the Canadian economy.
[21] The application is dismissed.
[22] No questions for certification are submitted by the parties.
"Max M. Teitelbaum"
Judge
TORONTO, ONTARIO
April 21, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3849-98
| STYLE OF CAUSE: CHANG WEN HSU |
and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, APRIL 21, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: TEITELBAUM J. |
DATED: WEDNESDAY, APRIL 21, 1999
APPEARANCES: Mr. Max Chaudhary
For the Applicant
Mr. Toby Hoffmann
For the Respondent
SOLICITORS OF RECORD: Chaudhary Law Office
Barristers & Solicitors
405-255 Duncan Mill Rd.,
North York, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990421
Docket: IMM-3849-98
Between:
CHANG WEN HSU
| Applicant |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 Parihar v. M.E.I., (1991) 16 Imm. L.R. (2) 144, 50 F.T.R. 236.