Date: 19971121
Docket: IMM-3676-97
BETWEEN:
FOK SUK-YEE, CHAN MING, CHAN SHUN-YIU, & CHAN KWAN-YIU
Applicants
- AND -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD J.:
Nature of the Proceeding
[1] The applicants seek, by way of an application for judicial review pursuant to subsection 18.1(2) of the Federal Court Act and subsection 82.1(2) of the Immigration Act, an order:
| (a) setting aside the decision of the visa officer, T. Bowman, of the Canadian Embassy in Manila, which was rendered on July 2, 1997, whereby the applicant's application for permanent residence was refused; |
| (b) an order directing T. Bowman, or another visa officer in Manila, to decide on the application for permanent residence in Canada in accordance with the law; and |
| (c) for such and further relief as the applicants may request and this Honourable Court allow. |
Background
[2] On December 31, 1996, the Canadian Embassy in Manila received an application for permanent residence from the applicants together with a covering letter requesting that the principal applicant be considered for immigration in the Entrepreneur category.
[3] An interview was scheduled for the applicant and her spouse on May 13, 1997. The purpose of this interview was to determine whether the applicant met the requirements for immigration to Canada as set out in the Immigration Regulations, 1978.
[4] At the interview, in addition to assessing the general statutory requirements for immigration to Canada, the visa officer asked the applicant to demonstrate that she met the components of the definition of an entrepreneur:
| a) one 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 |
| b) who intends and has the ability to provide active and ongoing participation in the management of the business or commercial venture. |
[5] The applicant stated that she intended to establish a retail computer business in Calgary, Alberta in partnership with her sister, who already operated a similar business in Canada. This new business would hire Canadian citizens or permanent residents as employees.
[6] The applicant stated that she intended to invest about $100,000 in the business but given that the proposed initial joint investment was $100,000, the visa officer understood this to mean $49,000 as her 49% intended share of the business with her sister holding the other 51%. The subject claimed on her application form that she had $250,000 available to transfer to Canada. The visa officer ascertained that this amount represented her entire personal worth. He accepted this amount at face value, notwithstanding that the amount shown on the applicant's personal worth statement, filed at the same time as her application, showed an amount of approximately $196,000. Given her net worth in relation to her proposed initial investment and the obvious need for ongoing investment, the visa officer had some doubt about her ability to purchase or make a substantial investment in a business or commercial venture in Canada. He expressed concern to the applicant about her intent and ability to invest the stated amount, given the need to otherwise establish her family financially in Canada. However, he ultimately considered this as a peripheral matter in relation to her ability to meet the overall definition of entrepreneur and, therefore, it was not a ground for refusal of the application.
[7] The visa officer also asked the applicant a series of questions to determine that she was a person who intends and has the ability to provide active and on going participation in the management of the business or commercial venture. He asked the applicant about her past work experiences and how they would contribute to her meeting this part of the definition of an entrepreneur.
[8] The applicant's counsel submitted further written submissions after the interview.
[9] After reviewing these submissions, the visa officer determined that they only addressed a peripheral concern which, as was previously set out above, was not a factor in rejecting the application. As such, the decision to reject the application remained unchanged.
[10] A refusal letter was issued on July 2, 1997.
Analysis
[11] An entrepreneur is defined in the Regulations1 as 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 |
[12] In order to fall within the definition of entrepreneur, the applicant must satisfy both parts (a) and (b) of the definition.
[13] It is clear that the visa officer concluded that the applicant did not fall within the definition of entrepreneur as she failed to establish that she had the ability to provide active and ongoing participation in the management of business. Accordingly, she did not satisfy part (b) of the definition.
[14] The visa officer had serious misgivings about the applicant's ability to provide active and ongoing participation in the management of the business for the following reasons:
| (a) her past work experience consisted of a limited supervisory, sales and marketing nature with minimal managerial level responsibility; |
| (b) when asked to give example of her involvement in any other activity which could demonstrate the ability to provide active and ongoing participation in the management of a business she could provide no examples; |
| (c) although she planned to be actively involved in the management of a computer retailing business, she lacked knowledge of retailing, computers and the computer business; |
| (d) she indicated that she would be relying upon her sister's ability to a large degree in establishing and operating the business. Her sister would decide the store location, choose and supply the inventory, provide management information to the applicant, hire and fire staff; and |
| (d) she had no plans to upgrade her skills with respect to her ability to participate in the management of the business. |
[15] A visa officer does not err in concluding that an applicant does not have the work experience to start and/or manage a business in Canada by reviewing the applicant's previous work experience2.
[16] It is also established that the Court 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 Court should not interfere3.
Conclusion
[17] The Immigration Officer did not commit a reviewable error in reaching the decision. Accordingly, the application for judicial review is dismissed.
__________________________
Judge
Ottawa, Ontario
November 21, 1997
__________________1 Immigration Regulations, 1978, subsection 2(1).
2 Kuo-Ting v. Canada (Minister of Citizenship and Immigration) (7 May 1997), Vancouver IMM-1345-96 (F.C.T.D.).