Date: 20000518
Docket: IMM-3495-98
BETWEEN:
YU-KUNG WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This applicant seeks judicial review of, and an order setting aside, a negative decision of a visa officer at the Canadian Consulate General in Hong Kong. The applicant's application for an immigrant visa was refused on the basis that he did not meet the definition of "entrepreneur", the class for which he sought admission as a permanent resident under the Immigration Act. The visa officer did not assess the applicant as an "investor". The decision in question was affirmed by letter dated June 1, 1998 and was communicated to the applicant through his counsel in Canada on June 23, 1998.
[2] The applicant, in the application for judicial review, filed with the Court on July 13, 1998, lists the following as the grounds for judicial review:
| 1. the officer erred in failing to assess Mr. Wang as an 'investor', the alternative category posited in his submission-letter and for which he is fully qualified; |
| 2. the officer erred by making findings contrary to the material on the record; e.g. that his net profit was only C$1,400 to C$24,000 when the financial statements set his share of profits at over C$500,000 in 1996 and over C$600,000 in 1997; |
| 3. the officer erred by making a finding for which there was no credible evidence that his principle [sic] company had "suspended operations approximately six months before [his] interview" when, in point of fact, it had never ceased operations; |
| 4. the officer erred by importing criteria into the definition of entrepreneur; i.e. that entrepreneurs must have made concrete business arrangements and have identified suppliers, prospective customers and competitors before receiving immigrant visas; |
| 5. the officer erred by 'double counting', being influenced by an irrelevant factor and making an ethno-centric finding; e.g. Mr. Wang's admitted lack of English makes him unable to operate successfully a Canadian firm exporting products to Asia; |
| 6. 'special reasons' exist meriting an award of significant legal fees to Mr. Wang; viz., that the decision is prima facie improper and bereft of any legitimate defence; and |
| 7. any other grounds this Honourable Court may allow. |
[3] In my opinion, in view of submissions made when the application was heard, these grounds can be dealt with as three general issues. These are: (a) whether the visa officer made a reversible error by failing to consider the applicant as an applicant in the investor category, (b) whether the visa officer made findings of fact that were capricious, without foundation or were based on evidence not properly before him, and (c) whether procedural fairness was denied by failure to invite further submissions following the interview of the applicant.
Did the visa officer make a reversible error by not considering
the applicant as the investor category?
[4] The application form completed on behalf of and signed by the applicant is for permanent residence in Canada in the entrepreneur category. The application makes no reference to the investor category, but in the covering letter from counsel in Canada which accompanied the application, reference is made near the end of the letter to a suggestion of immigration officers in Toronto that the applicant may wish to seek admission also in the investor category as an alternative to the entrepreneur category, and in the letter counsel requested consideration in the investor group. In his affidavit, the visa officer states that
| ... The applicant applied in the entrepreneur category and accordingly was assessed as an entrepreneur. The applicant was not assessed as an investor because he did not apply in the investor class. |
[5] The applicant submits, as authority for its position, the case of Mui-Ling Hui v. Canada (M.C.I.).1 In my view, this case does not deal with the question of whether a visa officer has an obligation to consider potential immigrants as "investors" as an alternative to applications for admission as "entrepreneurs", though both categories may be generally considered as within an undefined business group. Mr. Justice Campbell in Hui did apply the principle that in considering an applicant for admission in the independent category, for employment in a particular occupation, a visa officer must also consider other occupations that are inherent in the application in view of the applicant's work experience.
[6] In reply, on this issue, the respondent Minister submits that the applicant had not met the preliminary criteria to be considered an investor. It was therefore proper for the visa officer not to consider the applicant in this category. Under the Immigration Regulations, 1978 an applicant in the investor class is required, inter alia, to indicate in writing to the Minister that he or she has made an investment, or intends to make an investment, and this is to be done prior to the approval of an application for admission as a permanent resident. In short, the applicant must be an "investor" as the term is defined in s-s. 2(1) of the regulations:
| "investor" means an immigrant who
| (a) has successfully operated, controlled or directed a business, |
| (b) indicates to the Minister, in writing, that they intend to make an investment or have made an investment, and |
| (c) has a net worth, accumulated by their own endeavours, of at least $800,000; |
|
" investisseur " Immigrant qui répond aux critères suivants :
| a) il a exploité, contrôlé ou dirigé avec succès une entreprise; |
| b) il a indiqué par écrit au ministre qu'il a fait ou a l'intention de faire un placement; |
| c) il possède un avoir net d'au moins 800 000 $, accumulé par ses propres efforts. |
|
An "entrepreneur" is defined by the regulations, in s-s. 2(1), as
| "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. |
|
There is no suggestion in the record that the applicant had made the written indication to the Minister prescribed in subsection (b) of the definition of "investor".
[7] In argument, counsel for the applicant urged that an "investor" is inherently within the category of "entrepreneur" and that the requirement of writing to the Minister setting out one's investment, already made or planned, can be fulfilled after as well as before assessment of the application of an investor. In my view, the separate definition of "entrepreneur" and "investor" under the Regulations must be acknowledged. As defined, an entrepreneur may be an investor, but not all investors are entrepreneurs. One who applies as an entrepreneur can only be considered as a potential member of the investor class if it is established, at the time of application, that the applicant meets all qualifications as an investor, as defined, including having provided written advice to the Minister about investments made, or intended, in Canada.
[8] While the entrepreneur and investor classes are within the larger group of business immigrants, it is my opinion that the two are sufficiently separate that the visa officer is not under a legal obligation to consider one as an alternative to the other unless the applicant makes clear in an application that he or she seeks permanent residence in both categories as alternatives and indicates how he or she qualifies in each category as defined in the regulations. The request for consideration as an "investor" was not set out in the application, though it was added in the letter from counsel, but no effort was made to set out the qualifications of the applicant as an investor as defined in the Act and there had been no written communication to the Minister about any prospective investment, apart from that implicit in the application as an interpreneur. In my view, the visa officer did not err in considering the applicant as one seeking admission as an entrepreneur only, and in not considering him as an applicant in the investor category.
Did the visa officer make findings of fact that were capricious, without foundation or were based on evidence not properly before him?
[9] The critical findings of fact, on which this case hinges, are contained in the visa officer's refusal letter to the applicant, dated June 1, 1998:
| I have determined you do not meet the definition of entrepreneur for the following reasons. |
| You have partial ownership in three companies; the Taiwan San Tai Engineering Co. Ltd., the Sun Success Enterprises Co. Ltd., and the Taiwan San Tai Enterprises Co. Ltd. The Sun Success Enterprises Co. Ltd. is operated by your brother and sister. You have submitted a business license for this company which corroborates a company has been registered. However, the commercial activities and health of the enterprise has not been established by you. The Taiwan San Tai Engineering Company was unprofitable and the company suspended operations approximately six months prior to your interview. Presently, your major sources of income are interest earned from your bank accounts and revenues generated by the Taiwan San Tai Enterprises Co., Ltd. Over the past several years this company has generated modest annual profits ranging from an amount equivalent to 1,400 to 24,000 Canadian dollars. Your aspiration is to operate an import/export company in Canada. However, you do not know who your suppliers will be, or your potential competitors, and you have no strategy for marketing your products or identifying prospective customers apart from depending on your circle of friends. Also, you believe your lack of english will create difficulties for you conducting daily business. You have operated the Taiwan San Tai Engineering Co., Ltd. in a familiar commercial environment, where you speak the language of business fluently, and your circle of business contacts are close by. With these benefits, The Taiwan San Tai Enterprises has struggled to show marginal profitability only. Conducting business in an unfamiliar environment will create an additional competitive disadvantage. Consequently, I have determined you do not have the ability to establish, purchase or make a substantial investment in a business or commercial venture in Canada 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 dependents. |
[10] It is clear from the letter, the CAIPS notes and from the visa officer's handwritten notes that the negative decision was based on a number of factors: (a) the profitability of the businesses in which the applicant has been involved, (b) the applicant's lack of knowledge or research about business operations in Canada, (c) the applicant's lack of fluency in English, and (d) the visa officer's lack of confidence in the applicant's ability to operate a profitable business in an unfamiliar environment. All of these are discretionary conclusions made by the visa officer in the evaluation of the immigration application.
[11] When this matter was heard, counsel for the applicant urged that, in assessing the applicant's experience in operating businesses in the past, the visa officer had demonstrated an inability to comprehend accounting statements and to assess fairly the applicant's success. Yet as I understand the argument it is not said that the officer did not base his assessment on a record supplied by the applicant, rather it is that the summary record relied upon by the officer had inadvertently been completed, by or on behalf of the applicant, with one or more significant errors that would have been detected if the officer had thoroughly reviewed the more detailed accounting records provided at the same time by the applicant. Where erroneous information is provided by the applicant, the officer assessing his application cannot be faulted for relying upon it and the officer has no duty to review the accounting records in detail to ensure the accuracy or consistency of the applicant's records. Moreover, failure to thoroughly review accounting records does not amount to ignoring evidence, at least where a summary of that evidence is provided by the applicant and is relied upon. Simply because the officer does not review the records in detail, and relies upon a summary record provided by or for the applicant, does not provide any basis for criticism of the officer's capacity to understand accounting records.
[12] On one aspect of assessing the applicant's past business experience, the visa officer in the course of the interview requested additional information, which was not subsequently received at the consulate. Although the officer concluded at the end of the interview that he did not seek such information after all, because he orally advised the applicant then that he was rejected, counsel wrote before the decision was confirmed in writing to say that the information had been sent. In his cross-examination the applicant maintained it was sent by a courier company that subsequently went bankrupt and that there was no record of the name or other detail of the courier company. In any event, the information was not received.
[13] The standard of review to be followed in cases concerning review of discretionary decisions by visa officers was considered by the Court of Appeal in To v. Canada (M.C.I.),2 a decision rendered before recent decisions of the Supreme Court of Canada in Pushpanathan3 and Baker.4 In Hao v. Canada (M.C.I.),5 Madame Justice Reed has affirmed the standard of review to be applied when reviewing a visa officer's evaluation of whether a person qualifies as an entrepreneur as "unreasonableness simpliciter". That is, as long as the decision of the visa officer is reasonable, it will be given deference and will not be set aside.
[14] In my opinion, the visa officer was not unreasonable in reaching the conclusions he did. The past performance of businesses with which the applicant has been involved is relevant to whether the applicant has the ability required by the definition of entrepreneur contained in the Immigration Regulations, 1978. On the basis of some of the information submitted by the applicant the businesses with which he was involved appeared not to be very profitable. Additional information that might have demonstrated otherwise, in the form of tax returns, said to have been requested and sent, was not subsequently received. The assessment of the applicant's past success in business was not unreasonable in the circumstances. Reservations about the applicant's ability to establish and operate a successful business in Canada were not unreasonable or without some support in the evidence. Further, the record discloses that the applicant had not investigated in any careful way the business environment in Canada, particularly with regard to the specific business he proposed to operate. His English was less than fluent. It was not unreasonable to conclude this could present an impediment, not necessarily an insurmountable one, to the establishment of a business in Canada.
[15] In my opinion, the conclusions reached by the visa officer were not unreasonable. Whether another decision maker would weigh the facts and factors in the same way is not relevant where, in the exercise of discretion, the visa officer's conclusions are reasonable based upon evidence in the record.
Procedural fairness
[16] When this application was heard counsel urged that the applicant had been denied procedural fairness because, although counsel had written more than once after the applicant's interview and asked whether more information could be provided or if there were any concerns about the application that could be addressed, there was no response from the visa officer and no opportunity for the applicant or his counsel to provide additional information. The visa officer, by affidavit, states that following the interview on March 3, 1998, as he later recorded in CAIPS notes made from his own handwritten notes of March 3, that on the latter date the applicant was advised orally that his application was denied. That conclusion appears not to have been understood at the time by the applicant. But even if he did not understand then, there is no obligation on the visa officer considering an application to advise of inadequacies and to permit counsel, or the applicant, an opportunity to further address those concerns before the officer's decision. Failure to provide such an opportunity in not a breach of procedural fairness. Further, there is no denial of procedural fairness in providing an oral decision, rejecting an application at the conclusion of an interview, without further opportunity for the applicant to make submissions.
[17] At the hearing counsel for the applicant urged that in this case the visa officer should have exercised his discretion positively, to grant the visa sought, under s-s. 11(3) of the Regulations. That provision vests discretion in the officer to grant, or to refuse, an application regardless of the number of units of assessment, or points, assigned to the application. It is clear there is no duty to do so and there is no basis for intervention of the Court if the officer does not exercise discretion under s-s. 11(3).
Conclusion
[18] For the reasons set out an order goes dismissing the application.
[19] Counsel for the applicant proposed a question for consideration by the Court of Appeal pursuant to s-s. 83(1) of the Act, as follows:
| Is there an obligation on the part of the Minister to ensure that visa officers assessing an application for permanent residence as a member of the business class, i.e. as an entrepreneur or an investor, have a basic understanding of business, to assess the experience of the applicant? |
This question was not supported by counsel for the Minister. I am not persuaded that the underlying presumption of fact, that is, that the officer was not capable of understanding the applicant's submission, is here established, and thus, with respect, the question does not arise in this case in any manner which could lead to disposition of this case on appeal.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
May 18, 2000.
__________________
1 [1998] F.C.J. No. 1368 (T.D.).
2 [1996] F.C.J. No. 696 (C.A.).
3 Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982.
4 Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817.
5 [2000] F.C.J. No. 296 (T.D.).
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