Chu v. Canada (Minister of Citizenship and Immigration), docket IMM-5424-97

Date: 19980812

Docket: IMM-5424-97

BETWEEN:

     TING KI CHU,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

REED, J.

[1]      The applicant seeks to have a decision of a visa officer, which refused him admission to Canada under the entrepreneur category, set aside.

[2]      On reflection I have decided that the arguments amount to asking me to substitute my decision for that of the visa officer, something a reviewing court is not entitled to do.

[3]      It was argued that the visa officer fettered his discretion by focusing on the applicant's liquid assets ($53,000) rather than his total assets (close to $500,000). It was argued that the visa officer fettered his discretion by requiring the applicant to have experience in the overall management of the kind of business he proposed to establish (a restaurant) rather than just demonstrate that he has the ability to provide active and ongoing participation in the management of such a business; see, for example, Tam v. Canada (Minister of Citizenship and Immigration) (1997), 38 Imm. L.R. (2d) 116 (F.C.T.D.).

[4]      A reading of the visa officer decision, however, discloses that that officer was aware of the larger pool of assets that the applicant owned, that he used neither of the above described factors as a "requirement" that the applicant had to meet in order to be classified as an entrepreneur, that he assessed the applicant's experience as one among several factors relevant to the decision he was making.

[5]      A significant factor in the visa officer's opinion, given the type of business the applicant indicated he hoped to establish, was the applicant's lack of facility in either official language.

[6]      The visa officer did err in classifying the applicant's past entrepreneurial endeavours in Hong Kong as "failures". Both were of very short duration (one for six months and the other for seven months) and he was involved in them long ago. While one of these business ventures did not succeed, the other appears to have been successful. The applicant's interest in the business was brought by his partner, after the applicant had been involved in it for seven months. The applicant worked as an employee for a major restaurant in Hong Kong for most of his career. While the description of the facts of the second business as "failed" is not accurate, this is not a sufficient error, in the context of the decision as a whole, to justify setting aside the visa officer's decision.

[7]      The other concerns, articulated by counsel with respect to the decision, I must conclude are difficulties arising from some awkwardness, perhaps even incompleteness, in the visa officer's mode of expression: the use of "our" when referring to the decision that was made, instead of "I"; reference to the "type" of business that the applicant proposed to establish not being significant, rather than saying, in accordance with the statutory language, that the business is or is not one "that will make a significant contribution to the economy"; the listing of assessment factors as relevant to an evaluation, without mention of "personal suitability" as one such factor.

[8]      Reading the decision letter in the context of the record as a whole, I cannot conclude that the aspects of the text described above disclose a misunderstanding by the visa officer of the legal tests he was required to apply. Nor can I conclude that they disclose any misunderstanding as to the facts before him. With respect to the incomplete listing of the assessment factors, the visa officer, of course, was not required to complete that stage of the evaluation of the applicant's application, since he had made a decision that the applicant did not fall within the entrepreneur category.

[9]      I have not been persuaded that the decision is one that allows for intervention by a reviewing court. For the reasons given the application must be dismissed.

                             (Sgd.) "B. Reed"

                                 Judge

Vancouver, British Columbia

12 August 1998

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                          IMM-5424-97

                             - and -

DATE OF HEARING:                  TUESDAY, AUGUST 11, 1998

PLACE OF HEARING:                  VANCOUVER, BRITISH COLUMBIA

REASONS FOR ORDER BY:              REED, J.

DATED:                          AUGUST 12, 1998

APPEARANCES:                     

                             Mr. James A. Henshall

                             For the Applicant

                             Ms. Wendy Petersmeyer

                             For the Respondent

SOLICITORS OF RECORD:             

                             For the Applicant

                              Morris Rosenberg

                             Deputy Attorney General

                             of Canada

                             For the Respondent