Date: 20060214
Docket: IMM-2638-05
Citation: 2006 FC 157
Ottawa, Ontario, February 14, 2006
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
CHUN MU CHANG
PEI-HSUAN TENG
YING-CHIEN CHANG
YU-JEN CHANG
CHIA-LUN CHANG
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
OVERVIEW
[1] The legislatively established conditions of the entrepreneur category, if flaunted knowingly, without serious consequence, would make a mockery of the purpose for which they were established.
The Act of creating or participating in a front operation or a sham investment, if left unchecked, strikes a blow at the very integrity of the immigration system.
JUDICIAL PROCEDURE
[2] This is an application for leave and judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of the decision of the Immigration Appeal Division of the Immigration and Refugee Board (IAD) dated April 6, 2005, which dismissed the Applicants' appeal from the departure orders made against them by the Immigration Division.
BACKGROUND
[3] The Applicants, Mr. Chun Mu Chang, his wife, Ms. Pei-Hsuan Teng, their daughter Ying-Chien Chang and their sons Yu-Jen Chang and Chia-Lun Chang, are citizens of Taiwan. The father, Mr. Chang, is a businessman who owned a continental tire dealership from 1991 to 2003 and also had interests in two other companies.
[4] In 1995, the oldest son, Yu-Jen Chang, enrolled in a high-school in grade 10 and came to study in British-Columbia. In 1997, the second son, Chia-Lun Chang, also came to Canada to study when he reached grade 10. The parents came to Canada to visit their sons four times in the 1995-1996 school year, three times in the 1996-1997 school year and approximately three times each year after that.
[5] In March 1998, Mr. Chang hired an immigration consulting firm, named Overseas International Investment Group to enquire how he could immigrate to Canada. They proposed that he immigrate in the entrepreneur category and convinced him of the existence of a project which would be sponsored by the province of Quebec whereby he could start a farm in that province with the advantage that the day-to-day activities could be handled from Taiwan.
[6] In May 1998, Mr. Chang came to Quebec for twelve days to meet with other immigrants and officials from the Quebec provincial government. Mr. Chang and his family were issued a Quebec Selection Certificate (CSQ) in the entrepreneur category and in March 1999, the national authorities issued the immigration visas which were valid until November 1999 subject to the conditions in the entrepreneur category.
[7] The parents arrived in Vancouver on April 1, 1999, met with their sons who were already in Canada and went to nearby Washington State in order to re-enter Canada the same day. They were landed by CIC Douglas in British-Columbia on April 1, 1999. Their daughter joined them later and was landed on June 23, 1999 at the airport.
[8] After landing, the parents returned to Taiwanon April 8, 1999. Mr. Chang had further discussions with the representatives of the immigration consultant firm who told him that the Canadian government did not take the same position as the provincial government with regard to the day-to-day management of the business. Mr. Chang then entered into a second contract with the immigration firm so that it would represent him in acquiring a piece of land in Canada; have any restriction on the cultural program waived by the authorities within the two-year period; and assist in creating a Canadian company in which he would be a shareholder.
[9] In December 2000, Mr. Chang came to Canada and met with other interested parties in Montreal. Discussions were held with respect to a placement of the $50 000 to purchase a 25% share in a company for the purpose of investing in a farming business in St. Michel, in the province of Quebec. During this visit, Mr. Chang was in Canada from December 2 to 9, 2000. The company was eventually incorporated in March 2001.
[10] Throughout this period, the children continued with their studies. Yu-Yen Chang was studying in British Columbia where he completed high school and a few years of college. He returned to Taiwan on two occasions to visit his grand-mother, in 2001 and 2002. He moved to Toronto in 2003 where he stayed for seven months at his parents' request when they finally settled in Toronto that year. He then returned to Vancouver where he is presently employed with Rogers Wireless and has a girlfriend who is a permanent resident.
[11] Chia-Lun Chang moved to Toronto in August 2000 to continue his studies at the University of Toronto in electrical engineering. He expected to graduate on June 17, 2004 and is living with his parents. He also returned to Taiwan on two occasions, in the summer of 2002 and in 2003.
[12] The daughter, Ying-Chien Chang only came to Canada in 1999 as she was still studying in Taiwan and had two years left. She obtained two returning resident permits and moved to Canada in August 2002 where she now works for a newspaper.
[13] The parents finally came to stay in Canadain April 2003 after Chun Mu Chang sold his business in March 2003. They still have assets in Taiwan as the business was sold by instalments which are deposited directly in a Taiwan bank account. Their house in Taiwan has, as yet, not been sold although a broker has been retained to sell that property.
DECISION UNDER REVIEW
[14] The decision, with respect to the appeals by Mr. Chun Mu Chang, his wife, Ms. Pei-Hsuan Teng and their children Ying-Chien Chang, Yu-Jen Chang and Chia-Lun Chang from the departure orders made against them on June 19, 2003, stems from the reason that they are persons described in paragraph 41(b) of IRPA; they are all inadmissible for failing to comply with the conditions in IRPA. To be more precise, the parents were determined to be in non-compliance with subsection 27(2) and section 28 while the children were found to be in non-compliance through failing to comply with subsection 27(2) as they were dependants of an entrepreneur and bound by the same terms and conditions of landing as provided in paragraphs 23.1(1)(a) to (d) of the Immigration Regulations, 1978 (SOR/78-172).
[15] Mr. Chun Mu Chang and Ms. Rei-Hsuan Teng conceded that the decisions appealed were not wrong in law or fact or mixed law and fact. Rather, they argued that special relief was warranted in light of all the circumstances of the case: wherein sufficient humanitarian and compassionate considerations existed within the circumstances themselves.
[16] It is established that they did not respect the conditions of permanent residence in the entrepreneur category. This affects both the parents and the three children as they entered Canada as dependants. It is also established that the parents did not comply with the residency obligation whereas their children had.
[17] During the hearing, the children requested that their appeals be considered separately from those of their parents. The three children, who are now all adults, have become established in Canada. The older son and daughter are employed and the younger son is likely to be employed shortly as he is completing his studies. If considered separately from their parents, they present positive factors for discretionary relief.
[18] The IAD was of the view that the parents did not merit discretionary relief as they took part in a sham arrangement to try to fulfill the conditions of the entrepreneur category. The parents argued that family reunification should be a factor in the decision to grant discretionary relief. They also clearly felt that the family unit was of prime importance; and also that they exercised their authority over their children as all three had moved in with them when they finally moved to Canada. Even though the IAD felt that the children would be excellent candidates for permanent residence, it refused to grant discretionary relief to the children because once the children became permanent residents they would be entitled to sponsor their parents which would render the removal of the parents moot.
Panel cannot reward the parents by granting special relief to the children who would then be legally entitled to turn around and sponsor their parents on the basis of family reunification. The Panel cannot consider this a hypothetical question as both parents clearly indicated that, in their minds, the family unit should be a prime consideration, even though they sent their two sons abroad to study, one from 1995 and the other from 1997, and the family only came back together to live as a unit in 2003.
...
In conclusion, the exercise of discretionary relief is always a weighing process. In this case, there were some positive elements in favour of discretionary relief being allowed to the three children but these elements do not outweigh the importance which must be given to the integrity of maintaining the conditions in the entrepreneur category when the principal appellants, in particular the father, actively participated in what can best be described as a sham. The departure orders are valid in law and, considering all the circumstances of this case, the Panel concludes that there are insufficient humanitarian and compassionate factors to warrant special relief.[1]
ISSUES
[19] The appellants raise two issues:
1. Did the IAD err in law or in fact, breach fairness or exceed jurisdiction in declining to consider special relief for the three children?
2. Did the IAD err in law or in fact, breach fairness or exceed jurisdiction in determining that Mr. Chun Mu Chang (the principal Applicant) had been involved in a sham or scheme in relation to the enterprise that was established pursuant to provincial and legal advice?
ANALYSIS
Standard of review
[20] In Beaumontv. Canada(Minister of Citizenship and Immigration),[2] Madam Justice Judith Snider held:
The question of whether the IAD considered the right factors in its decision to cancel the stay is a question of law and therefore a correctness standard of review should apply. The assessment of the weight that the IAD placed on the evidence and how it interpreted that evidence at the hearing is a question of fact and should be reviewed on a standard of patent unreasonableness.
[21] The standard of review for factual findings of the IAD in relation to what is now subsection 67(1) of IRPA is that of patent unreasonableness.(Jessani; Bhalru;Qiu)[3] This Court has held that it will not interfere as long as the IAD has exercised its discretion in good faith and without regard to extraneous or irrelevant considerations.(Mohammed)[4]
Statutory scheme
[22] Pursuant to subsection 27(2) of IRPA, a permanent resident must comply with the conditions imposed by the regulations.
| 27. (1) A permanent resident of Canada has the right to enter and remain in Canada, subject to the provisions of this Act.
(2) A permanent resident must comply with any conditions imposed under the regulations.
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27. (1) Le résident permanent a, sous réserve des autres dispositions de la présente loi, le droit d'entrer au Canada et d'y séjourner.
(2) Le résident permanent est assujetti aux conditions imposées par règlement.
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[23] Section 28 of IRPA sets out the conditions of the residency obligation that permanent residents must respect.
| 28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period.
(2) The following provisions govern the residency obligation under subsection (1):
(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are
(i) physically present in Canada,
(ii) outside Canada accompanying a Canada citizen who is their spouse or common-law partner or, in the case of a child, their parents,
(iii) outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province,
(iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner, or in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the public service of Canada or of a province, or
(v) referred to in regulations providing for other means of compliance;
(vi)
(b) it is sufficient for a permanent resident to demonstrate at examination
(i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;
(ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and
(c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.
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28. (1) L'obligation de résidence est applicable à chaque période quinquennale.
(2) Les dispositions suivantes régissent l'obligation de résidence :
(a) le résident permanent se conforme à l'obligation dès lors que, pour au moins 730 jours pendant une période quinquennale, selon le cas :
(i) il est effectivement présent au Canada,
(ii) il accompagne, hors du Canada, un citoyen canadien qui est son époux ou conjoint de fait ou, dans le cas d'un enfant l'un de ses parents,
(iii) il travaille, hors du Canada, à temps plein pour une entreprise canadienne ou pour l'administration publique fédérale ou provinciale,
(iv) il accompagne, hors du Canada, un résident permanent qui est son époux ou conjoint de fait ou, dans le cas d'un enfant, l'un de ses parents, et qui travaille à temps plein pour une entreprise canadienne ou pour l'administration publique fédérale ou provinciale,
(v) il se conforme au mode d'exécution prévu par règlement;
(b) il suffit au résident permanent de prouver, lors du contrôle, qu'il se conforme à l'obligation pour la période quinquennale suivant l'acquisition de son statut, s'il est résident permanent depuis moins de cinq ans, et, dans le cas contraire, qu'il s'y est conformé pour la période quinquennale précédant le contrôle;
(c) le constat par l'agent que des circonstances d'ordre humanitaire relatives au résident permanent - compte tenu de l'intérêt supérieur de l'enfant directement touché - justifient le maintien du statut rend inopposable l'inobservation de l'obligation précédant le contrôle.
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[24] Pursuant to paragraph 41(b) of IRPA, a permanent resident is inadmissible to Canada if he or she fails to comply with the conditions set out in subsection 27(2) and section 28 of IRPA.
| 41. A person is inadmissible for failing to comply with this Act
(a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act; and
(b) in the case of a permanent resident, through failing to comply with subsection 27(2) or section 28.
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41. S'agissant de l'étranger, emportent interdiction de territoire pour manquement à la présente loi tout fait -- acte ou omission -- commis directement ou indirectement en contravention avec la présente loi et, s'agissant du résident permanent, le manquement à l'obligation de résidence et aux conditions imposées.
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[25] Subsection 23.1(1) of the Immigration Regulations, 1978 (the former regulations) set out the conditions that immigrants in the entrepreneur category must respect in order to avoid becoming inadmissible to Canada.
| 23.1 (1) Entrepreneurs and their dependants are prescribed as a class of immigrants in respect of which landing shall be granted subject to the condition that, within a period of not more than two years after the date of an entrepreneur's landing, the entrepreneur
(a) establishes, purchases or makes a substantial investment in a business or commercial venture in Canada so as to make a significant contribution to the economy and whereby employment opportunities in Canada are created or continued for one or more Canadian citizens or permanent residents, other than the entrepreneur and the entrepreneur's dependants;
(b) participates actively and on an on-going basis in the management of the business or commercial venture referred to in paragraph (a);
(c) furnishes, at the times and places specified by an immigration officer, evidence of efforts to comply with the terms and conditions imposed pursuant to paragraphs (a) and (b); and
(d) furnishes, at the time and place specified by an immigration officer, evidence of compliance with the terms and conditions imposed pursuant to paragraphs (a) and (b).
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23.1 1) Les entrepreneurs et les personnes à leur charge constituent une catégorie réglementaire d'immigrants à l'égard desquels il est obligatoire d'imposer les conditions suivantes au droit d'établissement:
a) dans un délai d'au plus deux ans après la date à laquelle le droit d'établissement lui est accordé, l'entrepreneur établit ou achète au Canada une entreprise ou un commerce, ou y investit une somme importante, de façon à contribuer d'une manière significative à la vie économique et à permettre à au moins un citoyen canadien ou un résident permanent, à l'exclusion de lui-même et des personnes à sa charge, d'obtenir ou de conserver un emploi;
b) dans un délai d'au plus deux ans après la date à laquelle le droit d'établissement lui est accordé, l'entrepreneur participe activement et régulièrement à la gestion de l'entreprise ou du commerce visé à l'alinéa a);
c) dans un délai d'au plus deux ans après la date à laquelle le droit d'établissement lui est accordé, l'entrepreneur fournit, aux dates, heures et lieux indiqués par l'agent d'immigration, la preuve qu'il s'est efforcé de se conformer aux conditions imposées aux termes des alinéas a) et b);
d) dans un délai d'au plus deux ans après la date à laquelle le droit d'établissement lui est accordé, l'entrepreneur fournit, à la date, à l'heure et au lieu indiqué par l'agent d'immigration, la preuve qu'il s'est conformé aux conditions imposées aux termes des alinéas a) et b).
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[26] Subsection 67(1) of IRPA sets out the reasons for which the IAD can allow an appeal.
| 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
(a) the decision appealed is wrong in law or fact or mixed law and fact;
(b) a principle of natural justice has not been observed; or
(c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
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67. (1) Il est fait droit à l'appel sur preuve qu'au moment où il en est disposé :
a) la décision attaquée est erronée en droit, en fait ou en droit et en fait;
b) il y a eu manquement à un principe de justice naturelle;
c) sauf dans le cas de l'appel du ministre, il y a -- compte tenu de l'intérêt supérieur de l'enfant directement touché -- des motifs d'ordre humanitaire justifiant, vu les autres circonstances de l'affaire, la prise de mesures spéciales.
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Did the IAD err in law or in fact, breach fairness or exceed jurisdiction in declining to consider special relief for the three children?
[27] The Chang family take issue with the fact that the IAD dismissed the appeals of the three children, even though considered on their own, the circumstances of these three individuals were positive. For example, they all have a degree of establishment, employment and career aspirations.
[28] Had the IAD dismissed only the parents' appeals and not the appeals of the three children, the children would then likely sponsor their parents. Thus, the parents would receive a benefit and the spirit of the Act would be defeated. The IAD simply did not want to make a decision that extended any special relief or benefit to the parents, be it directly or indirectly. It was open to the IAD to decline to exercise its discretion in favour of the children.
[29] Since the Chang family were not challenging the departure orders on the basis of law or mixed law and fact, but were only arguing that special relief was warranted in light of all the circumstances of the case, it was open to the IAD to look at their conduct and to conclude that no special relief was warranted. The granting of special relief is a weighing process. In this case, there were some positive elements in favour of discretionary relief, but ultimately, they did not outweigh the importance the IAD placed on the integrity of the entrepreneur category and IRPA itself.
[30] The case cited by the Chang family' counsel, Wang v. Canada(Minister of Citizenship and Immigration),[5] does not assist them. Indeed, in Wang, this Court dismissed the Applicants' application for judicial review of the IAD's decision and, in doing so, upheld the departure orders. The Court also found that the IAD's decision with respect to one of the Applicants' dependants was not unreasonable. The dependant in that case was married to a Canadian citizen and had a Canadian child. He was also attending school and was expecting to go to university. Thus, like the dependants in the case at bar, the dependant in Wang had become relatively established in Canada. Despite this, the IAD dismissed his appeal and this Court upheld the IAD's decision holding as follows:
It is well established that the Appeal Board must examine all of the circumstances of the case in order to determine whether or not a person should be removed from Canada. That discretion is properly exercised where it is done bona fide, uninfluenced by irrelevant considerations, and where it is not exercised in an arbitrary or illegal manner. (Wang, above at paragraph 19)
[31] In a similar case, Mand v. Canada(Minister of Citizenship and Immigration),[6] Mr. Justice Pierre Blais faced a difficult decision. The principal applicant had not respected the conditions of the entrepreneur category but the applicant's daughter had become established and was an excellent candidate for permanent residence in Canada. Mr. Justice Blais dismissed the application for judicial review, concluding that the decision of the Board was not patently unreasonable. Although there were humanitarian and compassionate reasons to grant special relief based on the daughter's establishment and contribution to Canada, it would go against the aim of the Act to grant special relief because the principal applicant would benefit after being granted a stay of the departure orders and showing a lack of respect for the immigration rules.
The Board is in a very difficult position regarding the present matter. On the one hand, the primary applicant is in clear violation of the rules regarding the entrepreneurial category of permanent residency. On the other hand, Canada has no interest in deporting individuals who have integrated and contributed to the well-being of Canadian society.
It must be stressed that the applicants were already given a second chance to comply with the rules by having their deportation orders stayed. The principal applicant knew the consequences if the conditions of that stay were not respected. Despite this, he was complacent and showed a lack of respect for the immigration process and its rules. The principal applicant is now attempting to remain in Canada based on the humanitarian and compassionate grounds affecting his daughter and her ties to Canada.
I find that that the Board erred in concluding that the principal applicant's daughter did not have strong ties to Canada. She is well educated and has integrated and contributed to Canadian society, as was determined by the Board back in 2002. The Board member even mentioned that he was "impressed" by her résumé; so am I. This being said, I do not believed the Board's decision to cancel the stay of the deportation orders is patently unreasonable. It would be unjust and against the principles of the Canadian Immigration process to decide otherwise. The principal applicant was given a second chance and failed to respect the rules. He should not be rewarded for being able to abuse the system to the point of allowing his family to remain in Canada long enough to build strong ties and qualify for a further stay of deportation orders based on humanitarian and compassionate grounds.
Although this would seem unjust for the principal applicant's daughter, based on her outstanding profile she would no doubt make an excellent candidate for permanent residency if she applied independently. If such a candidate fails, it would be difficult to imagine what candidate could succeed.[7]
[32] In the present case, even though the children might be excellent candidates for permanent residence in Canada, it was not patently unreasonable for the IAD to conclude that special relief could not be granted to the children because the parents would benefit after showing a lack of respect for the immigration rules.
[33] Furthermore, there was no breach of procedural fairness. The Chang family were given a meaningful opportunity to present their case. A hearing did take place where they were represented by counsel; where they presented evidence and made submissions. During this hearing, they were, in fact, given an opportunity to explain why they felt there were sufficient reasons to grant them special relief from the removal orders.
Did the IAD err in law or in fact, breach fairness or exceed jurisdiction in determining that Mr. Chun Mu Chang (the principal Applicant) had been involved in a sham or scheme in relation to the enterprise that was established pursuant to provincial and legal advice?
[34] Having reviewed the totality of the evidence and the chronology of the Chang family's immigration and business history, it was reasonably open to the IAD to conclude that Mr. Chang did not satisfy his obligations as an entrepreneur and moreover, that he participated in an elaborate scheme to circumvent his obligations.
[35] There is no reviewable error in this regard. Even if the Court disagrees with the IAD's conclusion, there is no basis for judicial intervention in this case. The panel's reasons in this regard are accurate, detailed and cogent.
[36] The Chang family contend that the IAD did not clearly reject the evidence of Mr. Harvey, a lawyer from Quebec, who had sent an email indicating that the farmer program was the creation of two civil servants (one of whom moved to Tourism Quebec and the other, who, took a year off to travel) which would mean that the Quebec government was aware of the program.
[37] There is no basis for this argument. The IAD clearly did not find the email in question cogent and did not place much probative value on this email. The IAD was entitled to place little weight on this email. The assessment of weight is clearly within the IAD's jurisdiction and expertise and is not under review by this Court. (Qiu; Hoang)[8]
CONCLUSION
[38] It was open to the IAD to find that special relief should not be granted to the Chang children because this would benefit the parents who had not respected the conditions under which they entered Canada. It was also open to the IAD to find that Mr. Chang had participated in a scam. As the decision of the IAD was not unreasonable, there is no reason for this Court to interfere. This application for judicial review is therefore dismissed.
ORDER
THIS COURT ORDERS that
1. The judicial review application be dismissed;
2. No question be certified.
"Michel M.J. Shore"
Obiter
Greater scrutiny of investment programs under which "entrepreneurs" gained entry into Canada may warrant significant attention. This, in recognition of considerations raised by the Applicant, necessitates serious examination by the Immigration authorities.
As it appears from this case, the monitoring of adherence to conditions of an investment program, at the very outset, is minimal, if at all; and certain "entrepreneurs", thinking that this is the usual state of affairs in respect of investment in Canada, could become, active or passive participants, in what appear to be, or could become, "entrepreneur" schemes without substance to any legislated immigrant investment program.
Therefore, the specific rhetorical questions raised by the Applicant in this case warrant articulation:
1. In such an investment program, how much responsibility should, in fact, be attributed to the "entrepreneur", when its very purpose is, in itself, in question?
2. With respect to the children of an "entrepreneur", why, and to what degree should they [who make a valuable contribution to Canada and who would be accepted, if they had applied under other categories according to the immigration system's own assessments as was specified] pay for the acts of a parent caught for lack of fulfillment of conditions in an "entrepreneur" program?
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