IMM-3079-96
BETWEEN:
Yu
Yi TSAI, domiciled and residing at No. 81-24,
Cheng-Nan
St., Nan-Ning Li, Ching-Shui Town,
Taichung
Hsien, Taiwan,
Applicant,
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION c/o Deputy Attorney General
of
Canada, Department of Justice, having office at
Complexe Guy
Favreau, 200 René-Lévesque West, East Tower,
5th
Floor, in the City of Montreal, Province of Quebec,
Respondent.
REASONS
FOR ORDER
PINARD J.
The applicant
seeks judicial review of a decision of Gregory Chubak, Second Secretary,
Immigration at the Canadian Embassy in Seoul, Korea (the "visa
officer"), dated July 16, 1996, refusing the applicant's application for
permanent residence in Canada in the investor category.
In his refusal
letter, the visa officer indicated the following:
In my opinion you do not meet this definition of
investor because you have not successfully operated, controlled or directed a
business or commercial undertaking. Notwithstanding your not insignificant
experience, your current and most senior position to date, while managerial in
scope, does not meet the aforementioned definition. While you have an equity
position in the accountancy of J.C. Wang and Co. and not insignificant
responsibilities therein, these responsibilities as co-mamanger [sic]
are insufficient to be interpreted as operating, controlling, or directing for
the purposes of the Immigration Act and Regulations. As you explained and
discussed in detail at interview, you are but one of three senior managers
whose decisions regarding operation, direction, and control are consensual and,
notwithstanding your co-manager's significantly greater equity positions,
require the input and agreement of all to be effectively binding.
In the recent
decision in To v. Canada (May 22, 1996), A-172-93, the Federal Court of
Appeal discussed the standard of review applicable to a visa officer's decision
to refuse an applicant for permanent residence in the Entrepreneur category.
The Honourable Mr. Justice Stone stated the following, at pages 2 and 3:
The appellant's application to enter Canada as an
"entrepreneur" [. . .] immigrant from Hong Kong gave rise to a
discretionary decision on the part of the immigration officer which was
required to be made on the basis of specified statutory criteria. The
appellant's intention was of establishing a business in Canada. The
"ability" so required was one of the relevant criteria.
Here, the immigration officer was not satisfied that the
appellant had either the business ability or the personal financial resources
to establish a business in Canada. We agree with Jerome A.C.J. that
the case does not justify judicial intervention. In Maple Lodge Farms
Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7‑8,
McIntyre J. stated for the Court:
It is, as well, a clearly‑established rule that the courts 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 courts
should not interfere.
In our view, these requirements, to the extent that they
apply, have been met in this case. Accordingly, no basis has been shown for
interfering with the decision of the Trial Division.
(My
emphasis.)
As
noted in To, there may be grounds for judicial intervention where a visa
officer relies on irrelevant or extraneous criteria, thereby fettering his or
her discretion. The applicant herein contends that the visa officer imported
the requirement that he have "unfettered operational control" into
the definition of "investor".
It is worth recalling that subsection 2(1) of the Immigration Regulations,
1978 defines an investor as follows:
2.
(1) In these Regulations,
[...]
"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;
In
Cheng v. Canada (1994), 25 Imm.L.R. (2d) 162, Mr. Justice Cullen
concluded that a visa officer's decision to refuse an 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 and 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.)
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 have "unfettered operational control"
of J.C. Wang and Company. The visa officer clearly viewed the fact that major
operational and directional decisions were taken by consensus by a three-member
management committee, of which the applicant was one, as a factor weighing
against a finding that the applicant had "successfully operated,
controlled or directed a business". From my reading of the definition of
"investor", there is no requirement for an applicant in this category
to have had sole or final decision-making power in a company. In my view, the
visa officer was being unduly restrictive in his interpretation of this aspect
of the definition of investor. Simply because the management style of a
corporation is based upon consensus decision-making does not necessarily mean
that the applicant did not have significant responsibility in that company.
The evidence in fact disclosed that the applicant was one of only three persons
making final decisions with respect to the overall direction of the company.
Consequently,
the decision of the visa officer is set aside on the ground that he imported
extraneous and irrelevant criteria into the definition of investor, thereby
fettering his discretion and erring in law. The matter is therefore sent back
to a different visa officer at a different visa office for reconsideration.
This
is not a matter for certification.
OTTAWA,
Ontario
October
2, 1997
JUDGE
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