Date: 19980323
Docket: IMM-2049-97
BETWEEN:
WAI HUNG 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 April 8, 1997, the Applicant was interviewed by a visa officer.
[4] The purpose of the interview was to determine whether the Applicant satisfied the definition of "entrepreneur" found in s. 2(1) of the Immigration Regulations, 19781 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 on-going 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; |
[5] The following information was obtained by the visa officer during the interview. It is recorded in her affidavit2 and CAIPS notes.
[6] The visa officer confirmed that the Applicant"s net worth was approximately $113,000 (CDN). With regard to his intention to purchase a business venture in Canada, the Applicant stated that he and his brother had each invested $11,500 (CDN) for the purchase of the Inn. Asked how he would pay for the remaining balance, the Applicant answered that he would invest $80,000 of his total net worth and his father would invest approximately $800,000 (CDN) or the remaining balance and start up costs.
[7] With respect to his work and business experience, the Applicant indicated that he had worked from 1974 to 1985 as a tailor"s apprentice for his father"s tailoring business. From 1985 to 1990, he was employed as a tailor instructor for a company owned by one of his father"s clients.
[8] In 1990, the Applicant and a Japanese partner established a garment manufacturing company in China which was called the "Sianore Fashion Company". The company was in operation for approximately one year, but was forced to close due to the lack of contracts. The Applicant could not provide any proof of the establishment of the company nor his involvement in it. His papers were allegedly destroyed.
[9] The Applicant further claimed that in 1993 he established the "Happy Together Restaurant" in China. In support of his claim, he produced a Foreign Sole Proprietorship Permission Certificate and a Legal Representative Business Licence for the restaurant. Both documents confirmed the existence of the restaurant but neither provided proof that the Applicant owned it or that it was ever in operation. Further, while the business licence listed the Applicant as managing director and general manager, the Foreign Sole Proprietorship Permission Certificate listed the investors as Suzhou Jin Chan District Food Company and Stanore Fashion Company Ltd. The Applicant explained that the restaurant was a joint venture between himself and his brother under the name Stanore Fashion Company, and the Chinese Government under the name Suzhou Jin Chan District Food Company. The Applicant did not provide any proof to corroborate his claim that he and his brother were the Stanore Fashion Company.
[10] The Applicant claimed that the restaurant was profitable in its one year of operation. He estimated that the profits from September 1993 to August 1994 were approximately $60,000 (CDN). The only document provided to substantiate his claim was a one-page unaudited financial statement. Asked why a profitable restaurant would cease operations within a year, the Applicant responded that the restaurant was closed down by the Chinese Government because the profits were too good.
[11] At the conclusion of the interview, the visa officer informed the Applicant of her decision to deny his application and gave him detailed reasons. By letter dated April 9, 1997, she confirmed her decision in writing. The following reasons were given:
| I have determined that you do not meet the definition of entrepreneur for the following reasons. |
| 1) I am not satisfied that you have the ability to establish purchase or make a substantial investment in a business in Canada. In your application for permanent residence in Canada you declared a personal net worth of approximately $113 000 CDN. This amount was confirmed during your interview. I am not satisfied that a personal net worth of this amount allows you the financial ability to establish, purchase or make a substantial investment in any business in Canada. In particular, I am not satisfied that you have the financial ability to purchase or make a substantial investment in the Swiss Inn in B.C., Canada, which you plan to purchase for $460 000. The fact that your father has agreed to invest $800 000 in the business, including start up costs, does not satisfy me that the $80 000 you are able and plan to invest in "sic > sufficient to purchase or make a substantial investment in Swiss Inn. |
| 2) I am not satisfied that you have the ability to provide active and on going participation in the management of Swiss Inn. Although you have proven yourself a successful tailor, you have not demonstrated through your involvement in either Sianore Fashion Company nor Happy Together Restaurant that you possess the ability to provide active management in a business. In both cases, profits were not confirmed and the profits claimed were at best marginal. In addition, as both companies were in operation for such a limited amount of time, I am not convinced that their success under your direction can be determined. |
3) Lastly, despite the fact that you claim to have spent 4 months in Canada in 1995, your knowledge of basic Canadian business practice was limited when questioned at interview. My decision is further confirmed by the fact that you have no English ability. This point is particularly relevant as you plan to purchase a business in Canada which involves significant interaction with guests and suppliers on a day to day basis.
ANALYSIS
[12] In To v. Minister of Citizenship and Immigration,3 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.:4
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.5
[13] In my opinion, in the case at bar, the visa officer reasonably determined that the Applicant did not meet the definition of "entrepreneur".
[14] With respect to the first part of the definition, it was confirmed, during the interview, that his personal net worth was $113,000 (CDN). The visa officer was not satisfied that this sum would allow him the financial ability to establish, purchase or make a substantial investment in a commercial venture in Canada more particularly, in the Inn he planned to purchase with his brother and father.
[15] I disagree with the Applicant"s counsel that the visa officer had to take into account the ability to make a living. Such a factor is appropriate when the visa officer awards units of assessment to an applicant pursuant to s. 8(1)c) and 9(1)b) of the Regulations , but not when assessing if an applicant comes within the definition of "entrepreneur". The definition under 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. Therefore, in my opinion, the ability to make a living is an irrelevant factor at this stage.
[16] Second, the visa officer was not satisfied that the Applicant had the ability to provide active and ongoing participation in the management of the Inn based on his experiences in either the Sianore Fashion Company or the Happy Together Restaurant. The visa officer"s findings are not based on irrelevant considerations. They are supported by the evidence and thus, were open for her to make. The Applicant argues over the weight the visa officer gave to the evidence or the lack of evidence that he presented in his interview and in his application. The weight a decision-maker gives to the evidence before her is not a matter for judicial review.
[17] Finally, the visa officer did not breach her duty of fairness. She gave the Applicant the opportunity to address her concerns. The case at bar is different from the situation in Muliadi v. Canada (Minister of Employment and Immigration)6 on which the Applicant relies. The visa officer did give him the opportunity to provide proof of his claim to have established the Sianore Fashion Company and of his involvement in the Happy Together Restaurant.
[18] As stated by McKeown J. in Kashani v. Minister of Citizenship and Immigration:7
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.8
[19] The visa officer did not commit any reviewable error in refusing the Applicant"s application as an "entrepreneur" and consequently, this application for judicial review is dismissed.
[20] Both counsels agreed that this was not a matter for certification of a serious question.
JUDGE
OTTAWA, ONTARIO
March 23, 1998
__________________3 (May 22, 1996) A-172-93 (F.C.A.).