Kwok v. Canada (Citizenship and Immigration), docket IMM-1737-96

Date: 19971121

Docket: IMM-1737-96

BETWEEN:

     CHI HONG KWOK

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

GIBSON, J.

[1]      These reasons arise out of an application for judicial review of a decision of a visa officer who refused the Applicant's application for permanent residence in Canada. The decision is dated the 22nd of April, 1996.

[2]      The Applicant applied in Hong Kong for an immigrant visa to Canada in the "investor category". At the heart of that category is the definition "investor" in subsection 2(1) of the Immigration Regulations, 1978¹. That definition reads as follows:

"investor" means an immigrant who

(a) has successfully operated, controlled or directed a business,

(b) has made a minimum investment since the date of the investor's application for an immigrant visa as an investor, and

(c) has a net worth, accumulated by the immigrant's own endeavours,

(i) where the immigrant makes an investment referred to in subparagraph (a)(i) or (ii) (b)(i), (c)(i) or (ii), (d)(i) or (ii) or (e)(i) or (ii) of the definition "minimum investment", of at least $500,000, or

(ii) where the immigrant makes an investment referred to in subparagraph (a)(iii), (b)(ii), (c)(iii), (d)(iii) or (e)(iii) of the definition "minimum investment", of at least $700,000;

The elements of the definition are conjunctive. Thus, to qualify in the investor category, the Applicant was required to meet all three elements of the definition "investor". On the evidence that was before him in this matter, the visa officer determined that the Applicant did not meet the requirements for immigration to Canada in the investor category by reason of the fact that he met neither of the first and third elements of the definition "investor". In his decision, the visa officer wrote:

I have determined that you do not meet the definition of investor for the following reasons.

Your title is assistant factory manager. You do not own shares in the company you work for. Your salary is only $20,000 HK a month. You report to the factory manager who reports to the director and general manager who reports to the president. The factory is owned by the president and general manager. You indicated that you supervised seven department heads directly and that you sit on the management committee with the president, general manager, factory manager, executive manager, engineering manager and finance manager.

You have not successfully operated, controlled or directed a business. You are simply a salaried employee ($20,000 HK a month). There are three people more senior than you. Your assessable personal net worth is only $282,000 [Can]. The bank accounts presented were in your wife's name and the property was in both names. Though you assisted in the managing of the factory, real decision making took place in Hong Kong. It is not credible that a salaried employee with no shares, no capital investment, would have final say on any matter of significance. Were you to have such influence, your salary would be higher, you would have shares and enjoy the profits of the company's success.

[3]      The Applicant urges that the visa officer erred, in a reviewable manner, first, in determining that the Applicant had not "... successfully operated, controlled or directed a business, ...", and secondly, in determining that the Applicant did not have a "... net worth, accumulated by the immigrant's own endeavours, ... " of at least $500,000. That $500,000 was the appropriate net worth amount in respect of this Applicant was not in dispute.

[4]      On the issue of whether the Applicant had successfully operated, controlled or directed a business, the visa officer had before him a letter from the executive director of the Applicant's employer which reads in part as follows:

Mr. Kwok is presently stationed at our production plant in Shenzhen, P.R. China and is responsible for the supervision of the plants 950 workers. Mr. Kwok is also in charge of the daily operation of the personnel, finance, transport, purchasing, production and quality control departments. His duties include recruiting and staffing, training and utilization of employees, importation of production materials, export of manufactured products, documentation of outgoing shipments and execution of contracts, and to main[tain] strict quality control for all manufactured machines.

Mr. Kwok has over twenty years experience in the production operation of electronics manufacturing plants and is one of FLX's [the Applicant's employer's] most experienced management executives. His gross salary is HKD 260, 000 per annum plus performance bonuses.

[5]      In Chen v. Canada (Minister of Employment and Immigration)², Mr. Justice Rothstein wrote:

As I read the definition of "Investor" in the Immigration Regulations, 1978, an applicant need only demonstrate that he has successfully either operated or controlled or directed a business or commercial undertaking. The words in context are disjunctive. It is therefore incumbent on the visa officer to assess each aspect separately to determine whether an applicant falls under at least one of the criteria. In my view, the visa officer did not do so in this case. She seems to have concluded from the fact that the applicant was not involved in the operation of the farm, that he also did not control or direct it. In coming to her conclusion , she failed to give a distinct meaning to each of the words operated, controlled or directed.

From the fact that the applicant did not operate the farm it does not follow automatically that he did not control or direct it.

On the facts that were before the visa officer in this matter, it was clear that the Applicant did not control or direct the business by which he was employed. However, whether he "operated" the business was another matter. In Cheng v. Canada (Secretary of State)³, Mr. Justice Cullen, after referring to the Chen decision, wrote:

However, as I read her [the visa officer's] reasoning as expressed in the letter to the applicant ... and her affidavit ..., 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.

[6]      On the facts of this matter, the visa officer appears to have concluded that the Applicant did not successfully operate a business or "... an integral profit-generating part of the business, ..." despite the evidence before him from the executive director of the Applicant's employer, because of the Applicant's title as "assistant factory manager", the fact that he did not own shares in his employer, the level of his salary and his reporting relationship. Title is not a relevant consideration, except as it may accurately reflect responsibility. Ownership of shares in the business is not a relevant consideration in respect of operation of a business. Salary may be a relevant consideration, but there is nothing to indicate that the visa officer took into account the evidence before him that the Applicant received performance bonuses in addition to his salary which might have been significant in amount and been in the nature of profit sharing that would involve the Applicant in enjoyment of a share in his employers success. The Applicant's reporting relationship is certainly relevant to "control" but, as with his title, is much less relevant to the question of operation of a business than the nature of the Applicant's authority and responsibility.

[7]      On the issue of whether or not the Applicant successfully operated a business, I conclude that the visa officer took into account irrelevant considerations and failed to take into account relevant considerations that were before him in the letter provided by the executive director of the Applicant's employer, and quoted above.

[8]      I turn then to the issue of calculation of the Applicant's "... net worth, accumulated by [his] own endeavours". As indicated in the portions from the visa officer's rejection letter quoted above, the visa officer disregarded the value of assets held in the Applicant's spouse's name and only took into account fifty percent of the value of assets held in joint tenancy by the Applicant and his spouse. Counsel for the Applicant urged that the full value of family assets, or at least of assets held in joint tenancy between the Applicant and his spouse, should have been taken into account in computing the Applicant's net worth, accumulated by his own endeavours. In Ho v. The Minister of Citizenship and Immigration⁴, Mr. Justice Heald, dealing with calculation of the net worth of an investor category applicant, wrote:

My impression from the totality of the evidence herein is that the applicant had much difficulty in separating her financial resources from those of her husband... and in producing documentation in support of her claim.

I am satisfied on the evidence that was before the visa officer in this matter, that the same could be said in respect of this Applicant. The evidence was simply insufficient to justify treating all of the assets of the Applicant and his spouse, or even the full value of their joint assets, as assets accumulated by the Applicant's own endeavours that should be included in calculation of his own net worth as opposed to the net worth of he and his spouse. I find nothing on the face of the definition "investor" quoted above that would justify inclusion in the net worth of this Applicant, the value of his spouse's assets and of her share of assets held jointly by them. If Parliament or the Governor in Council had intended that the value of assets of spouses be aggregated in the calculation of net worth of an investor class applicant, that could have been made clear. I am not prepared, as counsel for the Applicant urged me to do, to infer from the fact that, if this Applicant had qualified in the investor category, his spouse would have been entitled to accompany him to Canada as his dependant, that their assets should be aggregated. Thus, I conclude that the visa officer made no reviewable error in calculation of the net worth, accumulated by his own endeavours, of the Applicant.

[9]      As indicated earlier in these reasons, there are three elements to the definition "investor" in the Immigration Regulations. They are joined by the conjunctive "and". To qualify in the investor category, the Applicant had to satisfy the visa officer that he fulfilled all three elements of the definition "investor". While I am satisfied that the visa officer made a reviewable error in determining, on the basis that he did, that the Applicant had not successfully operated a business, I am equally satisfied that the visa officer made no reviewable error in calculating the net worth of the Applicant, accumulated by his own endeavours. Thus, I conclude that the visa officer was justified in the decision that he reached and that no basis exists for setting aside the visa officer's decision, taken as a whole. In the result, this application for judicial review will be dismissed.

[10]      Counsel for the Applicant recommended certification of a question on the issue of calculation of net worth under the definition "investor". Counsel for the Respondent recommended against certifying a question and urged that the basis for calculation of net worth under the definition "investor" was clear and unambiguous. I am in agreement with the position of counsel for the Respondent. No question will be certified.

                             (Sgd.) "Frederick E. Gibson"

                                 Judge

November 21, 1997

Vancouver, British Columbia

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

HEARING DATED:          November 20, 1997

COURT NO.:              IMM-1737-96

STYLE OF CAUSE:          CHI HONG KWOK

                     v.

                     MCI

PLACE OF HEARING:          Vancouver, BC

REASONS FOR ORDER OF GIBSON, J.

dated November 21, 1997

APPEARANCES:

     Mr. James Henshall          for Applicant

     Ms. Esta Resnick              for Respondent

SOLICITORS OF RECORD:

     James A. Henshall

     Vancouver, BC              for Applicant

     George Thomson

     Deputy Attorney General

     of Canada                  for Respondent

__________________

     ¹      SOR/78-172 (as amended)

     ²      (1993), 20 Imm. L.R. (2d) 290 (F.C.T.D.)

     ³      (1994), 25 Imm.L.R. (2d) 162 (F.C.T.D.)

     ⁴      14 August, 1997, Court File IMM-3363-96 (unreported), (F.C.T.D.)