Federal Court Decisions

     IMM-2502-95

Between:

     SHING BIU HUI, HANG SHEUN SO,

     FUNG LUN HUI and CHING YAN HUI,

     Applicants,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

DUBÉ, J.

     This application under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 is for an order that the refusal of the applicant's applications for permanent residence in Canada by the visa officer in Hong Kong dated the 17th day of October, 1994, is set aside.

     The applicant Shing Biu Hui (the "applicant") is a forty-five year old citizen of the People's Republic of China. The other applicants are his wife and two children. He worked from 1979 to 1985 as a production coordinator. In 1985 he opened a vegetarian restaurant, "Dor Bo Vegetarian Kitchen Ltd.", in Hong Kong, as one of five partners and the Managing Director of the restaurant. In 1991 he was also instrumental in establishing a vegetarian restaurant, the "Bo-Jik Vegetarian Inc.", in Vancouver, BC, with his wife and two other partners.

     In February 1994, the applicant applied for permanent residence under the entrepreneur category. On October 17, 1994, the visa officer (Ms. S. Dragan, Second Secretary) rejected his application. The two key paragraphs of her letter of refusal read as follows:

In my opinion, you do not meet this definition of an entrepreneur. You have been a partner and manager of Dor Bo Vegetarian Kitchen Limited since 1985. However this business has shown losses or very low profits since it was established. The average profits over the last four years were calculated to be only HK$22,199 per annum. If your activities in Dor Bo were to be considered a barometer of your abilities as an entrepreneur, it would not be considered a positive indication of your abilities. The fact that the business has been in operation for nine years does not negate the fact that if you were to depend solely on your own managerial efforts, you and your family would likely experience considerable hardship.

You also claim to be a partner in a vegetarian restaurant in Canada. As your activities in the Canadian business has apparently been limited to investment and not active management, this business is not relevant in determining your ability to actively manage a business.

     The applicant attacks the visa officer's decision on the grounds that she erred in law in her interpretation of the definition of "entrepreneur" in subsection 2(1) of the Immigration Regulations, by ignoring evidence properly before her, by basing her decision on erroneous findings of fact and by failing to consider the specific proposal of the applicant for the establishment of a business in Canada.

     Subsection 2(1) of the Regulations defines "entrepreneur" as follows:

"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;

     The applicant argues that there is no specific requirement in that definition that the proposed business to be established in Canada be profitable and that the visa officer must not fetter her discretion by looking only at the alleged lack of profitability. The visa officer must also consider the net worth of the applicant (which is over $2 million), the previous experience of the applicant, the duration of the applicant's restaurant in Hong Kong (nine years), the good will engendered by the applicant and his wife (a former actress) and his ability to provide an active and ongoing participation in the management of a business in Canada and which employs more than one Canadian resident (it presently employs 10 persons).

     The applicant also alleges that the visa officer made several erroneous findings of fact. Evidence in the form of financial statements prepared by an accounting firm shows that the Honk Kong restaurant was a profitable operation, that by March 31, 1993, that business has accumulated a cash surplus and was generating a profit. Remunerations have been paid to the directors. The visa officer gave no consideration to the good will and the accumulated appreciation.

     It must be borne in mind that to succeed in an application for judicial review under section 18.1 of the Federal Court Act the applicant must do more than establish the possibility that the Court might have reached a different conclusion. The applicant must show either an error in law apparent on the face of the record, or a breach of the duty of fairness appropriate to what is in this instance an essentially administrative assessment.

     The visa officer interviewed the applicant and reviewed his application for permanent residence. She concluded that he did not meet the definition of "entrepreneur" as his business in Hong Kong had shown losses or very low profits since it was established. She considered the profitability of the applicant's business in Honk Kong as one of the factors in his ability to manage a business. While the applicant may have a net worth of $2 million, these funds are not derived from the profits of his business, but rather family money acquired by way of inheritance. Thus, his net worth is not an indication of his ability to manage a business.

     While the refusal letter does not detail all of the evidence considered by the visa officer, her personal notes and her affidavit indicate that she did take into consideration all the factors raised by the applicant.

     The visa officer did take into consideration the applicant's business interests in Canada, but this has been up to now merely an investment business as the applicant has not taken an active part in the management of the Vancouver restaurant.

     The applicant has not established that the visa officer erred in law or failed to observe a principle of procedural fairness or based her decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before her.

     Consequently, this application for judicial review must be dismissed.

                             (Sgd.) "J.E. Dubé"

                                 J.F.C.C.

January 9, 1997

Vancouver, British Columbia