Date: 20001012
Docket: IMM-1768-99
B E T W E E N:
LEUNG TAI TAK
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] This is an application for judicial review of the March 5, 1999 decision of visa officer, Amy L. Ma, at the Canadian Consulate General, Los Angeles, California, denying the applicant permanent residence as an investor.
[2] Prior to the interview on February 23, 1998, the applicant submitted extensive documentation in support of the application. Although he applied in the entrepreneur category, at the interview he asked to be considered in the investor category because of an earlier business failure in 1996 in a seafood restaurant in Vancouver.
[3] The applicant is a resident of Hong Kong. After leaving school, he worked as a clerk in a garment factory, a construction worker, a store keeper in a storage warehouse, a stevedore, and as a controller/general manager at a container services company. Between 1990 and 1995, he worked as a controller at Wideside Terminal.
[4] The applicant states that in 1990 he established Comcheung Ltd. which is principally engaged in the stevedoring of containers and repair and maintenance services for containers. The applicant currently owns 95% of the shares in Comcheung. Since 1992, the applicant has also been one of nine shareholders in a group operating a chain of restaurants called the Newton Court Seafood Restaurants.
[5] The visa officer summarized his assets for the purposes of the application as Can $100,000.00 transferable funds, property valued at Can $1,130,434.00, and Can $1,100,000.00 in other business investments and an outstanding mortgage of Can $347,826.00.
[6] An earlier application for permanent residence as an entrepreneur was refused by the Hong Kong office due to the applicant's criminal record and the visa officers's finding that he was not rehabilitated. A review of the applicant's criminal record and the contents of the interview with respect to this aspect of the application are not included as they are not relevant to the issues on this judicial review.
[7] The applicant submits the visa officer based her decision on erroneous findings of fact without regard to the material before her. Of particular relevance on this judicial review application is the applicant's involvement in Comcheung. The refusal letter dated October 20, 1998 states:
| In addition to outlining financial requirements, section 2(1) of the Immigration Regulations, 1978, defines an investor as an immigrant who has successfully operated, controlled or directed a business or commercial undertaking. At the time of interview you were unable to satisfy me that you meet this criteria because: you indicated you established Comcheung Ltd. in 1990 and that the business was profitable from 1994 to 1997, however documentation provided did not support this; you claimed that as a shareholder in Newton Court Seafood Restaurants you receive salary and share in the profits however you were unable to provide business income tax / profit tax returns for the restaurants except for Uni-Press which indicated no profit 95-97; you have previously experienced a business failure in Canada; and you were unable to prove you have acquired your funds though your own business endeavours. You were unable to satisfy me that you have been successful in business. |
[8] The first error raised by the applicant concerns the profitability of Comcheung. In particular, the visa officer's statement that the documentation submitted did not support the applicant's claim that the business was profitable for the years 1994 to 1997. The relevant documentation includes the Profits Tax Returns and the corresponding financial statements prepared by the company's Certified Public Accountants. These documents indicate that the company operated at a loss for the corporate years 1991/1992, 1992/1993 and 1993/1994. For the years 1994/1995, 1995/1996 and 1996/1997 the company showed significant profits. The visa officer concluded, however, that because the company set off the losses of the earlier years to reduce its tax liability for the years ending 1995 and 1996 which resulted in no profit tax being payable, the company was not profitable. In my view she erred in this regard. This is not a situation where the company was unable to meet its financial obligations. The company simply used its earlier losses to minimize its tax liability.
[9] The visa officer also had concerns with respect to the applicant's involvement in Comcheung. This apparently stemmed from the fact that he only became a director of the company in 1992 and was working for Wide shine Terminals Ltd. from 1990 to 1995. In her affidavit she also expressed concern that there were no "verifiable official documents provided by the applicant to the company's original establishing date".
[10] With respect to the date Comcheung was established, the Certificate of Incorporation submitted by the applicant indicates the company was incorporated November 20, 1990. Further, the business evaluation prepared by Anthony Kam & Co, Certified Public Accountants, describes the growth of Comcheung and the applicant's involvement as follows:
| 8 Containers operation is the principal operation of the company. Starting from 1992, most of the giant containers operators in Hong Kong changed their mode of operation. They started to sub-contract out most of their containers operations work in an attempt to reduce their fixed overhead on staff cost of their companies. Taking advantage of this change, Mr. Leung set up Comcheung in 1991 to tender for these work. |
| 9 As a result of the above changes and Mr. Leung's good relationship with the management of these containers operators, Comcheung has been able to secure many jobs and has recorded significant growth in sales. The turnover of the company has increased from HK$33.5 million in 1994 to HK$62.3 million in 1997. This represents a compound annual growth rate of approximately 23% per year. ... 1 |
[11] In reaching her decision, the visa officer failed to take into account this relevant documentary evidence which corroborates the applicant's statements concerning his longstanding, direct involvement in Comcheung. Given that Comcheung is the principal business on which the applicant relied to establish that he had "successfully operated, controlled or directed a business" the visa officer's misconstruing of relevant evidence and her failure to consider relevant evidence requires a reconsideration of the application for permanent residence.
[12] Accordingly the application for judicial review is allowed, the decision dated March 5, 1999 is set aside, and the matter is remitted back for reconsideration by a different visa officer.
[13] Neither party submitted a question for certification.
OTTAWA
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1 Applicant's Record at p. 277.
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