Date: 19980611
Docket: IMM-2742-97
BETWEEN:
CHOU Shih-Chin, General Manager,
residing and domiciled at No. 6 Alley 3,
Lane 60, Section 3, Minchuan E. Road,
Taipei, 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-Levesque West, East Tower, 5th
Floor, in the City of Montreal, Province of
Quebec,
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of a decision of a visa officer, Sharon Cochrane, dated May 27, 1997 denying the application for permanent residence in the Entrepreneur category to the applicant.
FACTS
[2] The applicant, a citizen of Korea, is a Civil Engineer who was employed in the construction industry as a site supervisor from 1976 to 1978 and as a Project Administration Manager until 1987.
[3] The applicant stated at the interview that, in March 1987, the applicant and a group of associates established the Jia Pao Construction Company in which he held 30% of the venture's equity and acted as General Manager overseeing sales development and internal administration. The shareholders were unable to agree on the direction of the operations and it was dissolved in 1990 by mutual consent. However, the applicant's Labour Insurance Card indicates that between April 20, 1988 and December 30, 1989, the applicant worked for Yo Ming Construction Company. The Labour Insurance Card states that the applicant only worked for Jia Pao Construction Company from January 9, 1990 to May 3, 1990.
[4] In 1990, the applicant and other associates established the Jia Tai Construction Company in Taipei. The applicant and his wife owned 20% of the venture capital and the applicant acted as General Manager. The company generated profits of $700,000 (Cdn.) and $450,000 (Cdn.) in 1992 and 1993 respectively, although it did not generate any profit in 1994. The applicant's Labour Insurance Card largely confirms this evidence for it states that the applicant worked for Jia Tai Construction Company since June 6, 1990.
[5] The applicant applied for permanent residence in Canada in the Entrepreneur category in December 1995. The applicant intends to establish a business in Richmond, B.C. which will export Canadian-made construction materials to Asia.
[6] On July 10, 1996, the applicant attended a selection interview with Ms. Cochrane. Following the interview, the applicant forwarded Labour Insurance records of premiums paid by Jia Tai Construction as well as his own Labour Insurance Card.
[7] On May 27, 1997, some ten months after his interview, the applicant was informed that his application was refused on the ground that he did not have the requisite ability to "provide active and ongoing participation in an entrepreneurial enterprise in Canada."
RELEVANT STATUTORY PROVISIONS
[8] Subsection 8(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act), imposes the burden on the immigrant to show that his admission to Canada is not contrary to the Act or the Immigration Regulations, 1978, SOR/78-172 (the Regulations), as follows:
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.
[9] Paragraph 19(2)(d) of the Act provides that an immigrant will not be admitted to Canada if the said immigrant cannot fulfil or comply with the conditions or requirements of the Act:
19. (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.
19. (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui:
d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.
[10] Section 2 of the Regulations defines "entrepreneur" as follows:
"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 on-going participation in the management of the business or commercial venture;
"entrepreneur" désigne un immigrant
a) qui a l'intention et qui est en mesure d'établir ou d'acheter au Canada une entreprise ou un commerce, ou d'y investir une somme importante, de façon à contribuer de manière significative à la vie économique et à permettre à au moins un citoyen canadien ou résident permanent, à part l'entrepreneur et les personnes à sa charge, d'obtenir ou de conserver un emploi, et
b) qui a l'intention et est en mesure de participer activement et régulièrement à la gestion de cette entreprise ou de ce commerce;
[11] Section 8 of the Regulations provides that a visa officer must assess an entrepreneur on the basis of the factors set out in column 1 of Schedule 1, other than the factors set out in items 4 and 5 thereof:
| 8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I;
(b) in the case of an immigrant who intends to be a self-employed person in Canada, on the basis of each of the factors listed in Column I of Schedule I, other than the factor set out in item 5 thereof;
(c) in the case of an entrepreneur, an investor or a provincial nominee, on the basis of each of the factors listed in Column I of Schedule I, other than the factors set out in items 4 and 5 thereof.
(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in Column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in Column II thereof opposite that factor, but he shall not award for any factor more units of assessment than the maximum number set out in Column III thereof opposite that factor.
(3) [Repealed, SOR/85-1038, s. 3]
(4) Where a visa officer assesses an immigrant who intends to be a self-employed person in Canada, he shall, in addition to any other units of assessment awarded to that immigrant, award 30 units of assessment to the immigrant if, in the opinion of the visa officer, the immigrant will be able to become successfully established in his occupation or business in Canada.
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8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint :
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
b) dans le cas d'un immigrant qui compte devenir un travailleur autonome au Canada, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, autre que le facteur visé à l'article 5 de cette annexe;
c) dans le cas d'un entrepreneur, d'un investisseur ou d'un candidat d'une province, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, sauf ceux visés aux articles 4 et 5 de cette annexe;
(2) Un agent des visas doit donner à l'immigrant qui est apprécié suivant les facteurs énumérés dans la colonne I de l'annexe I le nombre voulu de points d'appréciation pour chaque facteur, en s'en tenant au maximum fixé à la colonne III, conformément aux critères visés dans la colonne II de cette annexe vis-à-vis de ce facteur.
(3) [Abrogé, DORS/85-1038, art. 3]
(4) Lorsqu'un agent des visas apprécie un immigrant qui compte devenir un travailleur autonome au Canada, il doit, outre tout autre point d'appréciation accordé à l'immigrant, lui attribuer 30 points supplémentaires s'il est d'avis que l'immigrant sera en mesure d'exercer sa profession ou d'exploiter son entreprise avec succès au Canada.
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SUBMISSIONS
1. The Applicant's Submissions
[12] The applicant submits that the visa officer did not assess the applicant as an Entrepreneur in accordance with the Act and its Regulations. The applicant further submits that this duty is analogous to the duty of the visa officer to assess an independent applicant's experience with respect to his intended occupation.
[13] The applicant contends that the visa officer erred in her interpretation of the statute by inadequately assessing the applicant as well as ignoring evidence as to the applicant's work experience while unduly relying on irrelevant considerations. The applicant adds that the visa officer did not discharge herself of the duty to fully assess the applicant in his category. The applicant submits that it is apparent from the visa officer's affidavit, her CAIPS notes and her handwritten notes, that her assessment of the applicant was minimal and she did not attempt to verify her concerns.
[14] Moreover, the applicant submits that the visa officer's finding that "Jia Tai was not profitable" is at odds with the information contained in the December 20, 1995 letter accompanying the applicant's application for permanent residence.
[15] The applicant adds that the visa officer's affidavit is vague as to the basis of her negative assessment and does not elaborate on the underlying facts. The applicant points out that the visa officer alleges that the applicant was not knowledgeable about management practices and responsibilities but offers no factual basis or examples in support of her conclusion.
[16] The applicant further submits that the visa officer failed to consider evidence in the applicant's file regarding his experience. The applicant also contends that the visa officer unduly relied on his status as a minority shareholder in the Jia Pao and Jia Tai construction companies. The applicant submits that his status as a minority shareholder is not indicative of his ability to provide active and ongoing participation in the management of a business or commercial venture.
[17] The applicant's second main contention is that the visa officer violated the duty of fairness by failing to inform the applicant of her concerns and give him an opportunity to address them before a decision was made. The applicant contends that the visa officer relied heavily on the discrepancy between the applicant's Labour Insurance Card and all of his application documents with regard to the length of time he worked at Jia Pao Construction. The applicant submits that the visa officer automatically assumed bad faith on the part of the applicant and drew a negative conclusion. The applicant submits that the concern about this contradiction should have been brought to his attention (see Dhesi v. Canada, [1997] F.C.J. No. 59 (QL) (F.C.T.D.)).
2. The Respondent's Submissions
[18] The respondent's preliminary submission is that Exhibits F and G to the applicant's affidavit in support of this application for judicial review should not be considered because these exhibits were not before the visa officer. Exhibit F contains a document entitled "Certificate" dated June 14, 1997 from the First Commercial Bank, Sung-Chiang Branch, which explains that the Jia Tai Construction Company has a good credit rating with an excellent savings record. Exhibit G contains a Balance Sheet dated December 31, 1995 from the Jia Tai Construction Company as well as a document entitled "Business Ownership/Performance Summary". Citing Lemeicha v. Canada (M.E.I.) (1993), 72 F.T.R. 49, the respondent submits that this information should not be considered by the court on review. However, if the court chooses to consider this information, the respondent submits that the applicant did not suffer any prejudice from failing to include this evidence in his submissions to the visa officer.
[19] With respect to the standard of review, the respondent cites the decisions in Hajariwala v. Canada (M.E.I.), [1989] 2 F.C. 79 (F.C.T.D.) and To v. Canada (M.E.I.), [1996] F.C.J. No. 696 (QL) (F.C.A.) for the proposition that the court should not interfere merely because the court may come to a different conclusion. The respondent submits that the court should not intervene if the visa officer's discretion has been exercised in good faith and in accordance with the principles of natural justice, and where there has been no reliance on irrelevant or extraneous considerations.
[20] Concerning the applicant's first submission, the respondent submits that the visa officer correctly followed the criteria set out in the Regulations. The respondent submits that the applicant was denied his application because he did not satisfy paragraph b) of the definition of "entrepreneur" in section 2 of the Regulations. The respondent notes from the visa officer's decision that she found that the applicant did "not have the requisite ... ability" to provide active and ongoing participation in the management of the business or commercial venture even though he had the intention to do so. The respondent submits that the applicant did not discharge the burden of proving to the satisfaction of the visa officer that he had that ability.
[21] The respondent submits that the visa officer considered the following factors in reaching this conclusion: 1) the applicant's background is in construction supervision and not as a manager with significant company control and management; 2) the applicant acknowledged that corporate decisions were taken by the President of Jia Tai Construction; 3) Jia Tai Construction was not profitable; and 4) the applicant could not substantiate the value he claimed for the shares in Jia Tai Construction. The respondent contends that these factors were validly taken into consideration by the visa officer to determine whether the applicant was a regular and active participant in management.
[22] The respondent disputes the applicant's claim that the visa officer ignored the evidence of the applicant's professional experience. The respondent submits that the visa officer considered the applicant's professional experience but concluded that it was not true managerial experience.
[23] The respondent also disputes the applicant's argument that the visa officer's conclusion that Jia Tai Construction was not profitable demonstrates that the officer did not consider the December 20, 1995 letter accompanying the application for permanent residence. The respondent submits that the visa officer obviously considered that letter since that letter stated that Jia Tai Construction did not earn any revenue in 1994. Citing Hui v. Canada (M.C.I.), [1997] F.C.J. No. 60 (QL) (F.C.T.D.), the respondent submits that the profitability of an applicant's business is a factor that the visa officer can consider to determine if an applicant has the ability to effectively manage a business.
[24] Thus, the respondent submits that the visa officer did not make a reviewable error in her assessment of the applicant under the "Entrepreneur" category.
[25] With respect to the applicant's second submission that the visa officer violated the duty of fairness by failing to apprise the applicant of her concerns, the respondent submits that the duty of fairness does not require that the visa officer confront the applicant with all negative impressions. Rather, the respondent argues that the visa officer must give the applicant the opportunity to provide all pertinent information in order to assist in his application. Since the applicant has the burden of proof, the applicant knows that he must demonstrate to the satisfaction of the visa officer that he meets the relevant criteria in the Regulations.
[26] The respondent cites several decisions and submits that a visa officer has been found to have violated the duty of fairness if the officer does not confront the applicant with extrinsic evidence or does not give the applicant an opportunity to present all the pertinent facts. The respondent submits that the duty of fairness requires that the visa officer study all the aspects of the application and give the applicant an opportunity to clarify or elaborate on the information contained in the application. Given that the applicant has the burden of proof, the respondent submits that the duty of fairness does not require that the visa officer must always inform the applicant of the officer's concerns.
[27] In the case at bar, the respondent submits that the visa officer gave the applicant the opportunity to provide all the pertinent documents and questioned him on his work experience. The applicant knew the criteria he had to meet from the definition of entrepreneur in the Regulations. Moreover, even if the visa officer should have told the applicant of her concerns about the contradiction between his Labour Insurance Card and his statements at the interview, the respondent submits that this was not an important factor in the visa officer's determination that the applicant did not meet the criteria of an entrepreneur. The respondent submits that the visa officer was more concerned with the four factors mentioned previously. The respondent supports this claim by noting that the visa officer wrote "ability to manage is in serious doubt" in her CAIPS notes which were written before she received the Labour Insurance Card. The respondent also notes that the visa officer did not mention this contradiction in her refusal letter to the applicant.
[28] Therefore, the respondent submits that the court should not interfere because the applicant has not shown any prejudice from the visa officer's failure to bring this contradiction to the attention of the applicant. The respondent cites Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 and Yassine v. Canada (M.E.I.) (1994), 27 Imm.L.R. (2d) 135 (F.C.A.), where the court stated that a matter need not be sent back to the administrative tribunal due to a violation of natural justice if the outcome is inevitable.
[29] Finally, the respondent rejects the applicant's submission that the visa officer should have given the applicant an opportunity to submit supplementary proof about the president's actions or the financial health of the company. The respondent notes from the visa officer's affidavit that the applicant stated at the interview that "corporate decisions were made by the company President and that the company was not profitable...." Even if the visa officer should have advised the applicant of this concern, the respondent submits that the applicant has not shown that he suffered any prejudice. In the visa officer's affidavit, the visa officer states that she read Exhibits F and G of the applicant's affidavit for this judicial review and that these exhibits, had they been before her at the time of the decision, would not have affected her conclusion. Therefore, the respondent submits that the applicant would not have suffered any prejudice if he had been aware of the visa officer's concerns.
DISCUSSION
[30] Before turning to the applicant's main grounds of review, I am satisfied that Exhibits F and G of the applicant's affidavit cannot be considered by the court on review because these documents were not before the visa officer. There are several cases that come to this conclusion other than the decision in Lemeicha, supra, which the respondent cited in support (see, e.g., Dance v. Canada (M.C.I.) (1995), 101 F.T.R. 9 (F.C.T.D.)).
[31] The applicant's first ground of review is that the visa officer improperly found that the applicant did not satisfy the definition of "entrepreneur" in section 2 of the Regulations. The applicant submits that this finding was made by ignoring evidence or by drawing incorrect conclusions based on the available evidence.
[32] It is clear from the decision that the visa officer found that the applicant did not satisfy paragraph b) of the definition of "entrepreneur" in section 2 of the Regulations. The visa officer held that the applicant did not have the ability to provide active and ongoing participation in the management of the business or commercial venture. This conclusion was based on several factors which were outlined in the respondent's submissions. Again, those factors deemed relevant by the visa officer were: 1) the applicant's background is in construction supervision and not as a manager with significant company control and management; 2) the applicant acknowledged that corporate decisions were taken by the President of Jia Tai Construction; 3) Jia Tai Construction was not profitable; and 4) the applicant could not substantiate the value he claimed for the shares in Jia Tai Construction.
[33] I am satisfied that the first three factors are most relevant to the determination as to whether the applicant had the requisite ability to participate in management. I find the fourth factor to be of minimal value. Essentially, the visa officer concluded that the applicant was a supervisor of construction activities rather than one who had a guiding hand in the management of a corporation. Furthermore, the fact that the applicant stated that the company was not profitable would surely be another factor for the visa officer to take into consideration since it could be a predictor of future success in Canada. However, I am satisfied that the visa officer's findings show, as stated by the applicant's counsel, a lack of understanding of what was said by the applicant.
[34] In her affidavit of August 5, 1997, the visa officer states:
| 3. In reaching my decision, I considered the business and financial documents rendered by the Applicant as well as the information provided by the Applicant and his wife during the course of the interview, this information being entirely written down in the CAIPS notes I took following the interview, and I also considered the labour insurance card subsequently provided by the Applicant. I produce as Exhibit "B" a copy of the CAIPS notes and a Exhibit "C" the Applicant's labour insurance card. |
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| 5. During the interview, the Applicant stated that from 1987 to 1990 he was a 30% shareholder in a company called Jia Pao Construction. He stated that this company had many shareholders and that he liquidated his portion because he did not have any control of the business. He stated that the President of Jia Pao Construction held the controlling interest. |
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| 6. The Applicant's labour insurance card (Exhibit "C") requested during the course of the interview and a subsequent letter dated July 10, 1996, was received at the Visa Section on August 8, 1996. An exmination of this document shows that the Applicant worked for Yo Ming Construction Company until December 30, 1989 and for Jia Pao Construction from January 9, 1990 to May 3, 1990. This is contrary to the information the Applicant provided at interview and on his sworn application for permanent residence (Exhibit "A"). |
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| 7. The Applicant further stated that from 1990 to the present date he worked for Jia Tai Construction Company. He stated that he held 20% of the shares of the company and was one of fifteen shareholders. |
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| 8. The List of Shareholders shows fourteen names and that Applicant holds 5%. Other minority shareholders include the following siblings: brother, Chou Shih Yuan - 5%; sister, Chou Shih Chin - 3%; brother Chou Shih Kung - 3%; brother Chou Shih Lin 2%. There are five other shareholders who each control between 10% and 17% of the shares, substantially more than Applicant's holdings. I produce as Exhibit "D" of my affidavit the said List of Shareholders. |
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| 9. In response to my request, the Applicant descrived his job duties. He stated that he was general manager of Jia Tai and worked in the office and at construction sites. He stated his responsibilities as follow: |
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| - checking to see if any documents needed his attention; |
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| - reading reports on land prices; |
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| - supervising the construction sites; |
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| - contacting customers, negotiating prices; |
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| - contact architect and suppliers; |
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| - negotiate prices of supplies; |
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| - report any problems to the President. |
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| 12. In response to my question, the Applicant stated that the value of his shares in Jia Tai and China San Chen Construction Company was Cad $1,273,945.00. |
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| 13. In response to my question as to whether he could prove the value of the shares, he responded no. |
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| 14. The Applicant then acknowledged that Jia Tai was not profitable. |
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| 17. It was my assessment following the interview that Applicant had enhanced and magnified his managerial claims and business experience. He was not knowledgeable about management practices and responsibilities, as shown in his description of his role in Jia Tai. He acknowledged that corporate decisions were made by the company President and that the company was not profitable. He also acknowledged that he could not substantiate his claimed share value. |
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| 19. The Applicant's stated employment history, claim of managerial responsibility and inability to sustain this claim at the interview and Taiwanese Labour Insurance Record (Exhibit "C") reveal discrepancies which form part of a pattern of inaccurary and inflation. |
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| 20. Considering all the above, I therefore reached a conclusion that the Applicant does not meet the definition of entrepreneur in that he does not evidence the ability to provide active and ongoing participation in the management of a business or commercial venture. |
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| 24. The delay in reaching my decision was caused by an ever increasing work load, and the effects of departmental re-organization and staff reductions. |
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[35] I am satisfied that the visa officer erred, as stated by the applicant's counsel, in her interpretation of the statute by ignoring evidence as to the applicant's work experience.
[36] As stated by the applicant in his affidavit of June 28, 1997:
| 15. The Refusal Letter states that "This (negative) conclusion was reached in discussing your duties and responsibilities in both your current and past positions, conclusively determining that your background and expertise lie in the area of construction supervision, estimating costs and ordering materials, and not as a manager with responsibilities with significant company control and management." |
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| The Application, the supporting documents, the Attorneys' covering letter and my responses to questions during the Interview do not lead to such a conclusion. More particularly, during the Interview I explained that the Company is involved in real estate development and that I had been a shareholder and general manager since its inception in 1990. I noted that I was charged with overall responsibility for sales development and internal administration and that my duties included: |
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| - hiring, training and supervising the Company's 8 full-time employees |
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| - real estate market research and analysis with a view toward finding suitable sites for development |
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| - negotiating with landowners for the purchase of properties |
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| - ensuring that appropriate permits are obtained from local government bodies |
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| - coordinating all contracts with outside legal counsel |
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| - playing an active role in the land planning and design stage with responsibility for calculating the eventual sales prices of the developed properties |
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| - controlling payments to the general contractor |
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| - supervising the progress and quality of the properties' development |
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| 16. The Refusal Letter states that "you acknowledge that the President bears responsibility for final decision-making and for the financial operation and that you take no responsibility for the operation or control of the company and you are not involved in the daily management of the company". |
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| This statement is clearly inaccurate. During the Interview I explained in detail my activity during the course of a typical working day and these activities are integral to the daily management of the company. The Visa Officer gave me no indication whatsoever that she doubted my claims in this regard and had she made her concerns known to me I would have asked for the opportunity to furnish additional documents which i believe may have satisfied her doubts. More specifically, I would have submitted a statement from the Company's bank and Company cheques which would have demonstrated that my signature is required along with those of the Company President and Controller on all such financial instruments, as more fully appears from a copy of a certificate form the First Commercial Bank as well as copies of two Company cheques annexed hereto as Exhibit F. |
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| 17. The Refusal Letter states that "You also stated that the company is not profitable and that you are unable to substantiate the value you claimed for your shares in this company". |
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| Not only is this statement incorrect but in fact during the Interview I was not asked any questions concerning the Company's profitability or about the value of my interest in the Company. The document submitted prior to and/or available at the Interview demonstrated that the Company is profitable. The Company generated revenues of CAD$2.3 million in 1992 and CAD$3.9 million in 1993, upon which profits of CAD$700,000 and CAD $450,000 were earned respectively. It is true that in 1994 the Company showed a loss of approcximately CAD$500,000 but was due solely to the fact that in 1994 the Company was in the midst of developing a major construction project and that according to Taiwan tax regulations income is only recorded from the completion of construction. My spouse and I own 20% of the Company's stock. The Company's balance sheet as of December 31, 1995 indicated a book value of approximately CAD $2 million dollars and thus at a minimum I would evaluate our interest in the Company at CAD $400,000, plus a premium in excess of book value. Annexed hereto as Exhibit G are copies of the Company's Business Ownership/Performance Summary and balance sheet. |
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[37] I cannot, on the basis of the evidence before me, understand on what basis the visa officer concluded that the Jia Tai Construction Company was not a profitable company. Because a company, in one year, 1994, does not show a profit does not make that company an unprofitable company. This same company made a profit of $700,000. (Cdn.) in the year 1992 and $450,000. (Cdn.) in 1993.
[38] In paragraph 12 of the visa officer's affidavit, she states that the applicant states that the value of his shares in Jia Tai Construction Company and China San Chen Construction Company was $1,273,945. (Cdn.) but it appears she would not accept this value because the applicant could not "prove" the said value.
[39] Nowhere does she say she asked for a financial statement or some other document to allow the applicant to make such evidence. Surely, if the value of the shares is a concern for the visa officer in that she could not accept the value stated by the applicant, she should ask for evidence establishing the value as stated.
[40] I understand it is for the applicant to prove his statements, but he must be told after being asked for a value of his shares that the visa officer disbelieved the reply. In addition, I see no evidence upon which she did not believe the statement made by the applicant.
[41] I also have great difficulty in understanding how the visa officer concluded that the applicant did not have "the ability to provide active and ongoing participation in the management of the business or commercial venture" he wished to establish in Canada.
[42] My reading of the visa officer's affidavit indicates that she questioned the applicant's ability on the basis that he was a minority shareholder in the companies he was involved in and that, as a result, he had no control. In addition, all final decisions had to be made by the President of the company.
[43] With due respect, being a minority shareholder does not indicate a lack of ability to provide active and ongoing participation in the management of a business.
[44] The evidence before the visa officer clearly shows that the applicant had such experience (see paragraph 15 of the applicant's affidavit).
[45] The issue of the duty of fairness was raised by counsel for the applicant. I considered the requirements of the duty of fairness in a recent decision (Ali v. Canada (M.C.I.), [1998] F.C.J. No. 468 (QL) (F.C.T.D.)) where I wrote:
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The decision in Muliadi v. Canada (M.E.I.), [1986] 2 F.C. 205 (C.A.)) states that a visa officer has a duty of fairness to provide the applicant with knowledge of the officer's concerns and an opportunity to respond. However, MacKay J. noted the following in Yu v. Canada (M.E.I.) (1990), 11 Imm.L.R. (2d) 176 (F.C.T.D.) at page 187: |
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In my view, there is no ground for arguing unfairness in the process merely because the visa officer at the interview of the applicant does not stress all of the concerns he may have that arise directly from the Act and Regulations that he is bound to follow in his assessment of the application. The Act and Regulations pertinent to admission are available to applicants whose task is to establish to the satisfaction of the visa officer that they meet the criteria set out, and that their admissions to Canada would not be contrary to the Act. |
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MacKay J. repeated this opinion in Parmar v. Canada (M.C.I.), [1997] F.C.J. No. 1532 (F.C.T.D.). |
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[para18] On this point, Muldoon J. noted in Asghar v. Canada (M.C.I.), [1997] F.C.J. No. 1091 (F.C.T.D.) that: |
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[i]t is still not clear in what circumstances procedural fairness requires that the visa officer apprise the applicant of his concerns. [...] [O]ne may conclude that this duty does not arise merely because the visa officer has not been convinced, after weighing the evidence, that the application is well-founded. |
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[para19] It appears that the duty to apprise the applicant of the visa officer's concerns is limited. Given that the applicant must establish that he has met certain criteria to enter Canada, the applicant should assume that the visa officer's concerns will arise directly from the Act or the Regulations. This does not mean that the visa officer should remain silent throughout the interview while the applicant states his case. The visa officer should lead the interview and attempt to draw out relevant information about the application. What it does mean is if, for example, an applicant for a visitor's visa has provided weak evidence supporting his position that he has sufficient ties to his home country to ensure his return, then the visa officer does not have to apprise the applicant of this concern. Such a concern arises directly from the Act and the Regulations. It may be preferable if the visa officer would inform the applicant of this concern but failure to do so does not violate the duty of fairness. |
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[para20] On the other hand, the prime example of when a visa officer should inform the applicant of his concerns is when the visa officer has obtained extrinsic evidence. In that situation, the applicant should have the opportunity to disabuse the officer of any concerns that may arise from that evidence. |
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[para21] In essence, where an interview is necessary to assess an applicant, the duty of fairness requires that the visa officer thoroughly interview the applicant on factors relevant to the claim and give the applicant an opportunity to respond to allegations or assumptions of which the applicant could not be reasonably aware. |
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[46] In the present case, I am satisfied the visa officer failed in her duty of fairness in not asking the applicant, after receiving the "insurance cards" to explain what the visa officer found to be a contradiction as to the work history of the applicant.
[47] It appears to me that the applicant was denied the right to "explain" the alleged contradiction.
[48] For the above reasons, the present judicial review application is allowed and the decision of the visa officer, Sharon Cochrane, dated May 27, 1997, is hereby set aside.
[49] The matter is returned to a visa officer, other than Sharon Cochrane, to, once again, conduct an interview with the applicant to determine whether or not the applicant fulfils the conditions of the Act for permanent residence in Canada in the Entrepreneur category.
[50] I have stated that it was some ten months after the interview with the applicant that the visa officer made and sent her decision to the applicant.
[51] In her affidavit, the visa officer states, as her reason for taking ten months to make and send out her decision:
| 24. The delay in reaching my decision was caused by an ever increasing work load, and the effects of departmental re-organization and staff reductions. |
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[52] I clearly understand that the visa officer has an increasing workload and the effects of departmental reorganization and staff reductions may cause some delay. I do not accept the above as a valid excuse for taking ten months to make a decision on an application for permanent residence in the Entrepreneur category.
[53] In the circumstances of this case, I am satisfied the applicant was prejudiced by the fact that he had to wait ten months to be told his application for permanent residence was denied.
[54] Had the applicant been told soon after his interview that his application had been denied, he could have instructed his counsel to immediately commence the necessary proceedings to have the decision judicially reviewed without being forced to wait a number of extra months.
[55] The parties have indicated that they do not have a question for certification.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, ONTARIO
June 11, 1998
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