Ottawa, Ontario, Friday the 21st day of April, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
and
THE MINISTER OF CITIZENHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Su Yen Huang (the Applicant) a citizen of Taiwan challenges the October 24th, 2005 decision of Immigration Officer Aucoin who denied her application for permanent residence in Canada as an entrepreneur in the category of the economic class.
[2] Her application was received at the Immigration Regional Program Centre in Buffalo, New York on March 22nd, 2002 and was processed under the provisions of the Immigration and Refugee Protection Act (the Act) and the Immigration and Refugee Protection Regulations (the Regulations) which came into force in June of 2002.
[3] I touch upon a preliminary issue which arose during the proceedings because the Immigration Officer had, on May 27th, 2005, previously made a decision denying the applicant's application for permanent residence status in Canada in the category of an investor.
[4] On November 10th, 2005, the applicant had obtained leave to commence judicial review proceedings against that decision from a judge of this Court who was unaware that on October 24th, 2005, the Immigration Officer had made a second decision, this time assessing the applicant in the proper category of an entrepreneur rather than an investor.
[5] In the context of that first decision the Minister in his memorandum of fact and law, argued that the Immigration Officer's first decision was a nullity invoking the Federal Court of Appeal's decision in Longia v. Canada (Minister of Manpower and Immigration) [1990] 3 F.C. 288.
[6] Counsel for the Minister then brought a motion to dismiss the judicial review application challenging the Immigration Officer's first decision on the grounds of mootness. I heard that motion in Vancouveron February 6th, 2005 (three days before the commencement of hearing the judicial review application in respect of the decision on which leave had been granted). During argument, I indicated to the parties that, because the legal question was the same whether the applicant was considered as an investor or as an entrepreneur I thought that the matter should be heard on its merits.
[7] When the parties subsequently appeared before me, counsel for the Minister proposed a solution which met favour with counsel for the applicant and the Court. The judicial review application before me was amended on consent to reflect the fact that the challenge was to the October 24th, 2005 decision. The Minister's application to dismiss the proceedings on grounds of mootness was then withdrawn.
The Immigration Officer's Decision
[8] The Immigration Officer referred to subsection 12(2) of the Act which stipulates that a foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.
[9] He then cited subsection 97(1) of the Regulations which is headed "entrepreneur class", providing that for the purposes of subsection 12(2) of the Act:
...the entrepreneur class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada and who are entrepreneurs within the meaning of subsection 88(1).
[10] As an aside, I note that subsection 97(2) of the Regulations headed "minimal requirements", provides:
If a foreign national who makes an application as a member of the entrepreneur classes is not an entrepreneur within the meaning of subsection 88(1), the application shall be refused and no further assessment is required. [emphasis mine]
[11] The Immigration Officer then set out the definition of "entrepreneur" which contains three necessary criteria to be met by an applicant, the first element being the requirement that the applicant has business experience.
[12] The Immigration Officer then considered the definition of "business experience"which is defined:
...in respect of an entrepreneur, other than an entrepreneur as selected by a Province means the management of a qualifying business and the control of a percentage of equity of the qualifying business for at least two years in the period beginning five years before the date of application for a permanent resident visa and ending on the day a determination is made in respect of the application. [emphasis mine]
[13] The terms "qualifying business" and "percentage of equity" are also defined in the definition section of subsection 88(1) of the Regulations. That subsection is entitled "interpretation" and is contained in Division 2 of the Regulations entitled "business immigrants".
[14] For the purposes of these reasons, I do not need to set out the definition of "qualifying business" as the Immigration Officer's decision did not turn on that point. In his decision, he referred to "percentage of equity" which, as noted, is defined in subsection 88(1) of the Regulations as follows:
"percentage of equity" means:
(a) in respect of a sole proprietorship, one hundred percent of the equity of the sole proprietorship controlled by a foreign national or their spouse or common law partner;
(b) in respect of a corporation, the percentage of the issued and outstanding voting shares of the capital stock of the corporation controlled by a foreign national or their spouse or common law partner; and
(c) in respect of a partnership or joint venture, the percentage of the profit or loss of the partnership or joint venture to which a foreign national or their spouse or common law partner is entitled. [emphasis mine]
[15] The Immigration Officer concluded:
"You have not satisfied me that you have business experience because your share of the business/corporation is held in trust for you by your father and you do not have the control of the percentage of the issued and outstanding voting shares of the capital stock of the corporation. As a result, you do not meet the requirements of subsection 90(1)." [emphasis mine]
The Tribunal's Certified Record
[16] The Tribunal's certified record contains the factual background to the Immigration Officer's decision.
[17] The "qualifying business" to which the applicant's application for permanent residence as an entrepreneur relates is the Yuan Chung-Kang Service Station which carries on operations in Taiwan as a petrol service station, and as a retailer and importer of fuel and oil (the truck stop).
[18] The applicant's father is Huang Chin-San. In a certificate of employment dated the 15th of November 2001, the applicant is described as having being employed as the president's assistant of the truck stop from January 5, 1996. That certificate states that the person in charge of the truck stop is her father.
[19] Her father is named the company's representative as director in the company's license issued in 1995 (certified record, page 38). He is the person in charge in the business registration certificate (certified record, page 40) issued in 1995 and that notation is the same in the truck stop's practicing license issued that same year (certified record, page 42).
[20] Other documents in the certified tribunal record show that the applicant's father is the sole director of the business and is the holder of two million shares in the truck stop representing twenty percent of the issued shares. The certified record also indicates that there are six other shareholders (certified record, pages 45 and 224).
[21] In her application for permanent residence, the applicant indicated 20 percent of the truck stop's issued shares was owned by her "in trust" by her father. (certified record, page 227)
[22] The certified record at page 30 indicates that the ownership of the truck stop is 20 percent held by the father "in trust" for his daughter.
[23] At the request of the Immigration Officer, a copy of the Declaration of Trust was provided. The document is a typed document headed Declaration of Trust and contains two paragraphs. It is signed by Huang Ching-San as a Trustee and is dated the 10th of March, 1999. It reads:
"I, Huang Ching-San, as Trustee of Huan-Chung-Kang Service Station Co., Ltd., at Tsuoying District, Kaohsiung City, Taiwan, representing twenty (20) percent shares of the firm, am writing to testify that such shares still belong to Huang Su Yen."
"I further testify that before formally transferring the said shares, I shall be acting and exercising full rights as of today on behalf of Huang Su-Yen's interest as mentioned above." [emphasis mine]
[24] The Immigration Officer's CAIPS notes dated October 20th, 2005 reads:
"... I have reviewed this file and find that the subject has no equity in the business except for the one held in trust by her father who is the "person in charge" and has the authority of decisions. I am not satisfied that the subject has the control of the percentage of the equity of the business since her father holds all authority over her equity."
"This trust arrangement was set for subject by her father March 10th, 1999. This confirms the fact that the subject does not have the control of her shares in what appears to be a family corporation (seven shareholders). The subject's job since 1996 is that of assistant to the president of the business. The subject therefore does not have any "percentage of equity", as she does not have the control of a percentage of the issued and outstanding voting shares of the capital stock of the corporation. As such, the subject does not meet the definition of business experience for an entrepreneur per R. 88. As such the subject does not meet R. 97(1) and per R. 97(2), no further assessment is required."
ANALYSIS
[25] I look to the Supreme Court of Canada's decision in Pushpanathan v.Canada(Minister of Citizenship and Immigration [1998] 1 S.C.R. 982 for the applicable standard of review.
[26] As I see it, the Immigration Officer's decision turns on whether he properly construed the relevant provisions of the Regulations as they pertain to the entrepreneur class. In particular, the central question he decided was that the applicant did not have the control of a percentage of the equity of the qualifying business, i.e. the truck stop because her shares were held in trust by her father.
[27] The proper interpretation of a regulatory provision is a question of law and generally the standard of review is correctness which is the least deferential of the three standards. I will review the Immigration Officer's decision on the correctness standard.
[28] The proper approach to statutory interpretation is now settled by the Supreme Court of Canada in its much cited decision of Re Rizzo & Rizzo Shoes Ltd. [1998] 1 S.C.R. 27 where Justice Iacobucci stated the following at par 21 of his Reasons:
"Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 1 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103."
[29] In my view this judicial review application should be dismissed for the following reasons.
[30] First, contrary to the assertions of counsel for the applicant, the Immigration Officer did not mix up management experience with control of a percentage of equity of the qualifying business. It is true that the Immigration Officer did not refer to the applicant's management of the truck stop. In her application, the applicant had indicated that for the past six years she was running the financial side of the business.
[31] It was unnecessary for the Immigration Officer to deal with the applicant's management of the truck stop. The Immigration Officer could refuse, as he did, the application if the applicant did not control a percentage of the equity in the truck stop. Clearly, the definition of "business experience" in respect of an entrepreneur has two conjunctive components both of which must be met for a person to have business experience. Those components are the management of a qualifying business and the control of a percentage of equity.
[32] Second, the Immigration Officer applied the proper test to determine the control of a percentage of equity which, in the case of a corporation, is defined as the percentage of the issued and outstanding voting shares of the capital stock of the corporation controlled by a foreign national or their spouse or common-law partner.
[33] It is clear from the Immigration Officer's decision, when that decision is read in its entirety, the test he applied to determine the control of the shares in the truck stop said to be attributable to the applicant was by inquiring who had the legal control of those voting shares. The test the Immigration Officer adopted was a de jure control as opposed to a factual control of those shares. This is the proper test to determine the control of a corporation. I refer to two cases. The first case is Buckerfield's Ltd. v. Canada (Minister of National Revenue) [1965] 1 Ex. C.R. 299 where that control was defined as "the right of control that rests in ownership of such a number of shares as carries with it the right to a majority of the votes in the election of the Board of Directors". The Buckerfield's test was reaffirmed by the Supreme Court of Canada in Duha Printers (Western) Ltd. v. Canada [1998] 1 S.C.R. 795.
[34] Counsel for the applicant says that the Immigration Officer should have been thinking of the control of the ownership of the shares. I cannot subscribe to this argument as it would amount to re-writing the test established in section 88 of the Regulations, that is, control by a foreign national of the percentage of the issued and outstanding voting shares in the capital stock of the corporation.
[35] It was the applicant who stated to Canadian Immigration Officials that her shares were held in trust by her father or that her father's shares were held in trust by him for her. The latter interpretation seems to me to carry more weight as the declaration of trust by her father indicates that before formally transferring the said shares, he would be acting and exercising full rights as of March 10, 1999.
[36] Based on the evidence before him, it was reasonably open to the Immigration Officer to arrive at the conclusion he did, that is, the applicant did not have the control of the percentage of the issued and outstanding voting shares of the capital stock of the truck stop because her share of the business was held in trust for her by her father.
[37] Any ambiguity which might be said to arise from the terms of the trust agreement counts against the applicant who had the burden of satisfying the Immigration Officer that she met the requirements of the Act and the Regulations.
[38] Finally, I do not find any merit in counsel for the applicant's criticism of the Immigration Officer's decision which he said was focused on the control of the company and not on the control of the ownership of the shares. He points to the Immigration Officer's CAIP notes which refer to "the person in charge" and the authority over decisions. What counts in this case, in my view, is the Immigration Officer's written decision and not his CAIP's notes. In any event, he reads those CAIP's notes microscopically which, when read in their entirety, show that the Immigration Officer applied the proper test.
[39] For these reasons, this judicial review application is dismissed.
ORDER
THIS COURT ORDERS that this judicial review application is dismissed. I would not propose to certify any question of general importance as this judicial review application turns upon its particular facts.
"Francois Lemieux"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4738-05
STYLE OF CAUSE: Su Yen Huang v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 9, 2006
APPEARANCES:
| Mr. Lawrence Wong
|
|
| Ms. Helen Park
|
SOLICITORS OF RECORD:
| Lawrence Wong & Associates Barristers & Solicitors Vancouver, B.C. |
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|