Date: 20011114
Docket: IMM-4073-00
Neutral citation: 2001 FCT 1259
BETWEEN:
YEOUNG SOOK PARK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks judicial review of a decision of the visa officer dated June 26, 2000, wherein the officer refused the applicant's application for permanent residence in Canada as an entrepreneur.
[2] The issue is whether the officer's decision was unreasonable in that it failed to take into account relevant considerations and took into account irrelevant considerations.
FACTS:
[3] The applicant applied for permanent residence as an entrepreneur. An interview was conducted by the visa officer through an interpreter as the applicant could not speak English. At the interview the applicant told the officer that her husband would join her in Canada in two or three years because of his business commitments in Korea. However, even when he would eventually come to Canada he would continue to own his business in Korea. She also stated that she ran a motel in Korea of which she owns 6.92% of the shares. The rest are held by her husband.
[4] The applicant also told the officer that she invested $1,050,000 in a restaurant business in Canada called Centre Island Food Services Ltd. According to her application, she had intended to invest $300,000, and increase it subsequently to $900,000. However, she had to put in the additional investment earlier than planned because the company required further funds, and several shareholders had abandoned the company because it was not making a high enough return.
[5] When the applicant was asked about her role in the Canadian business she told the officer she would look after the bookkeeping and the cashiers. When asked how she would do this, since she does not speak English, she indicated she intended to learn some English. She also noted that the 80% shareholder, Mrs. Song, spoke Korean, and that the language of communication between them was Korean.
[6] The applicant also indicated that she had very little knowledge of Canadian business practices and no experience in the food business. She was asked how her experience with the motel in Korea would assist her in Canada and she did not make any comment except to indicate that her only managerial experience was in the motel business. She appeared to know very little about the company and indicated that she planned to have a relaxed retirement in Canada. She expanded on that by saying that the business was basically a seasonal business from June to September, and accordingly that the rest of the year would not be busy.
[7] The visa officer expressed his concerns about the applicant's ability to provide ongoing participation in the management of the business. The applicant indicated that her husband would be joining her in two years and that he would be managing the business, and that she was attending the interview in the husband's shoes.
[8] In his decision letter dated June 26, 2000, the visa officer stated:
In my opinion, you do not meet the definition of entrepreneur because you have not satisfied me that you have the ability and the intention to provide active and on-going participation in the management of the business or commercial venture in Canada. I expressed my concerns to you at your interview. You told me that your husband will join you in 2 years and he will manage the business. You told me that you attended the interview "in your husband's shoes". I told you that if it is your husband who plans to participate in the management of the company, he is the one who should apply as an entrepreneur when he is ready to move to Canada.
ANALYSIS:
[9] An entrepreneur is required to establish, purchase, or make a substantial investment in a business and must intend and have the ability to provide active and ongoing participation in the management of the business as well. Subsection 2(1) of the Immigration Regulations defines an entrepreneur as 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;
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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;
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[10] In the case before me the applicant clearly met the requirements of paragraph (a). The real question is whether the visa officer erred in his interpretation of paragraph (b).
[11] In my view, the visa officer's decision was reasonable and took into account relevant matters. In a similar case, Wetston J. in Yeung v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 792 stated:
The visa officer carefully examined the business history of the Applicant to determine if he could effectively manage the business, if established in Canada. On the basis of the evidence, the finding that the Applicant could not effectively manage the business was open for him to make. In other words, the visa officer was more concerned with the Applicant's ability to effectively participate in the management of the business, rather than with his ability to establish the business.
[12] Jerome A.C.J. in Abad v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1842 looked at several factors in that case which are similar to the case before me. At paragraph 4 he states:
There are several factors which caused the officer to be concerned; the applicant's language skills or difficulty; his lack of familiarity with Canada; and as well, his limited experience in owning or operating businesses of a similar nature, and it is certainly the visa officer's responsibility to inquire into all of these areas.
[13] It was open to the officer to find that the fact that the applicant was involved in the motel business and had invested substantially in the business in Canada does not lead to the conclusion that she intends and has the ability to provide such participation in the management of a restaurant business. Most of the evidence supports the contrary conclusion. She knew very little about Canadian business. She also stated that the managerial decisions will be made by Mrs. Song, her 80% partner. She also indicated that her husband will manage the business when he arrives and that she would like to have a relaxed retirement in Canada. It was entirely reasonable and open to the visa officer to find as he did.
[14] The application for judicial review is dismissed.
"W. P. McKeown"
JUDGE
Toronto, Ontario
November 14, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4073-00
STYLE OF CAUSE: YEOUNG SOOK PARK
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, NOVEMBER 6, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MCKEOWN J.
DATED: WEDNESDAY, NOVEMBER 14, 2001
APPEARANCES: Mr. Jegan Mohan
For the Applicant
Mr. James Brender
For the Respondent
SOLICITORS OF RECORD: Mohan & Mohan
Barristers & Solicitors
225-3300 McNicoll Ave.
Scarborough, Ontario
M1V 5J6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011114
Docket: IMM-4073-00
Between:
YEOUNG SOOK PARK
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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