Federal Court Decisions

     IMM-1283-96

BETWEEN:

     LAI KWAN TAM,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

PINARD J.

         The applicant seeks judicial review of a decision of M. Lourdes Hernandez, Designated Immigration Officer at the Canadian Embassy, Mexico City (the "visa officer"), dated February 28, 1996, refusing the applicant's application for permanent residence in Canada under the Entrepreneur category.

         Subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations"), defines an entrepreneur in the following terms:

[. . .]

"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 ongoing participation in the management of the business or commercial venture;

         In her refusal letter, the visa officer relied primarily on the applicant's alleged lack of overall management experience to conclude that the applicant did not have the "ability" required by subsection 2(1) of the Regulations. She wrote:

In my opinion you do not meet this definition of entrepreneur because you were unable to prove to me that you have the ability to provide active or on-going participation in the management of a business in Canada. The documents that you submitted during and subsequently to your interview to prove your ability to manage a business in Canada were insufficient. You claimed that you have been a sales manager for the company Hsien Tai Hong Limited, and presented to me documents that showed that you were 15 % shareholder from October 1986 to December 1992. However, at the same time you were also sales manager of the Xin Jui Company on an employee/employer basis. This means that you were dedicated to represent two companies but you did not present any legal document to establish that you have been responsible for the overall management and performance of any of the two businesses. Furthermore, you were unable to present to me any other legal documents than your tax returns for 1991/1992 which confirmed that your company Hsien Tai Hong Limited had marginal gains. You left these companies for personal reasons and then you started working for the company Good Quality Stationery & Gifts Ltd. in the capacity of sales manager as confirmed by the letter of reference from October 13, 1995. The information on file confirms that you were not involved in the management of the overall company. I then proceeded to request you with additional information on your proposed joint venture but even though the information provided contained a description of an existing wood cutting manufacturing plant located in Port Coquitlam, that counts with one supervisor in charge of all aspects regarding product quality, inventory management, supply and distribution schedule and staff coordination, I do not believe that you have the ability to provide active and on-going participation in the management of this business because you have not been able to establish that your work history includes responsibility for the operations of a business. Also, your lack of skills in either of Canada's official languages would seriously hinder your ability to provide active and on-going participation in the management of a business in Canada. Therefore, you do not satisfy the definition of an entrepreneur.

(My emphasis.)

         This conclusion was reached by the visa officer despite the fact that the applicant worked her way up from an accounting clerk to a director, and despite the fact that the applicant was a director of two profitable companies, was in charge of sales and purchasing for the two companies and was and continues to be a sales manager for a stationery company.

         Nowhere in the definition of "entrepreneur" is it indicated that an applicant must have been responsible for the "overall management and performance" of a business, nor that the applicant must intend to be responsible for "overall management" of his or her proposed business in Canada.

         In Cheng v. Canada (Secretary of State)¹, Mr. Justice Cullen concluded that a visa officer's decision to refuse the applicant's application for landing in the Investor category had to be quashed on the grounds that the visa officer had "imported additional requirements into the criteria for qualifying for the investor program, namely the operation, or responsibility for the operation, of the company as a whole". It is worth reproducing the relevant extract of Cheng, which is found at page 166:

I do not believe that the officer followed the expressed policy in this case. That in itself is not an error worthy of referring the matter back for redetermination (see Vidal v. Canada (Minister of Employment & Immigration) (1991), 41 F.T.R. 118). However, as I read her reasoning as expressed in the letter to the applicant of November 19, 1993 and her affidavit sworn March 28, 1994, I believe that she has imported additional requirements into the criteria for qualifying for the investor program, namely the operation, or responsibility for the operation, of the company as a whole. Indeed, if she found that the applicant was responsible for the operation of an integral, profit-generating part of the business, then he ought to have met the criteria absent some other factor. In the case at bar, the only such factor I can see is the added requirement of operating the business as a whole. This means that only those few at the actual top of the corporate ladder would qualify, while others in positions of otherwise great practical responsibility would not.

This strict reading of the definition of investor is not consistent with the policies of Immigration Canada, as set out in the Regulations or expressed in the guidelines. It is not intended that the applicant operate a wholly-owned business or a wholly-owned undertaking. That interpretation is clearly wrong and the addition of such a criterion does amount to an error of law which adversely affected the exercise of her jurisdiction and which warrants referring the matter back to a different immigration officer for redetermination. Essentially, by imposing her own criteria for the definition of investor on the circumstances of the applicant, the officer has fettered her discretion. Further, unless and until some new guidelines are introduced, the parties affected by the policy are entitled to be treated in a consistent manner, not to the arbitrary addition of criteria by each particular immigration officer.

[. . .]

In the case at bar, the officer, upon considering all of the evidence presented, reached a decision based in part on a misapprehension of the law. She did not, in so doing, breach the procedural fairness owed to the applicant. However, upon a rehearing of the matter, the applicant must be given the opportunity to explain how he qualifies as someone who has gained experience as a senior manager in a company.

(My emphasis.)

         Although the present case concerns an applicant in the Entrepreneur category, it is my opinion that the visa officer in the case at bar committed a similar error to that committed by the visa officer in Cheng, by importing the requirement that the applicant be experienced in the "overall management and performance" of a business, thus fettering her discretion.

         For the foregoing reasons, the visa officer's decision must be quashed and the matter sent back to a different visa officer at a different visa office for reconsideration.

         I agree with counsel for the parties that this is not a matter for certification.

OTTAWA, Ontario

May 7, 1997

                                

                                         JUDGE

__________________

     ¹      (1995), 25 Imm.L.R. (2d) 162 (F.C.T.D.).