Date: 20020322
Docket: IMM-1683-00
Neutral citation: 2002 FCT 316
Ottawa, Ontario, this 22nd day of March, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
KAM HUNG SZETO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 for an order to set aside the decision of the visa officer dated March 13, 2000, wherein the applicant's application for permanent residence was refused.
[2] The applicant seeks an order to set aside the above decision and refer the matter back for redetermination by a different visa officer. The applicant seeks costs on a solicitor and client scale.
Background
[3] The applicant is a 49 year old permanent resident of Hong Kong. He applied for permanent residence in Canada under the Entrepreneur category through the Canadian Consulate General's Office in Hong Kong.
[4] The applicant attended an interview with the visa officer on February 28, 2000. At the beginning of the interview, the applicant said he wanted to try to do the interview without an interpreter, and use the interpreter only if necessary. After a few questions, the visa officer realized that it would be very difficult to conduct the interview without the help of an interpreter because of Mr. Szeto's limited knowledge of English. The visa officer told the applicant that by continuing the interview without an interpreter, there could be misunderstandings on his answers, and his evaluation might suffer as a consequence. They continued with an interpreter.
[5] The decision of the visa officer was communicated to the applicant by letter dated March 13, 2000. The letter of the visa officer included the following passage:
I have determined that you do not meet the definition of entrepreneur. Specially, you have not showed to my satisfaction that you have the ability to establish, purchase or make a substantial investment in a business or commercial venture in Canada in which employment opportunities will be created or continued for at least one person other than yourself and your dependents, and to provide active and on going participation in th management of this business or commercial venture.
Since you do not meet the definition of "entrepreneur," you are a member of the class of persons who are inadmissible to Canada described in paragraph 19(2)(d) of the Immigration Act in that you do not comply with the requirements of the Immigration Act and the Immigration Regulations. Accordingly, I have refused your application. I have attached a copy of this paragraph for your reference.
[6] This is the judicial review of the visa officer's decision.
Applicant's Submission
[7] The applicant submits that the visa officer erred in law in his interpretation of the definition of "entrepreneur" in subsection 2(1) of the Immigration Regulations, 1978 S.O.R./78-172 so as to fetter his discretion and act beyond his jurisdiction. The applicant submits that the visa officer erred by misinterpreting the definition in such a way as to create the requirement during the interview to make a determination whether the applicant has the ability to provide active and on going participation in the management of the business in Canada.
[8] The applicant submits that the visa officer erred in law by ignoring evidence properly presented before him.
[9] The applicant submits that the visa officer erred in law by basing his decision on erroneous findings made in a perverse or capricious manner without regard for him.
[10] The applicant submits that the visa officer erred in law by breaching the rules of procedural fairness.
[11] The applicant submits that section 8 of the Immigration Regulations, 1978, supra requires that the visa officer shall assess the immigrant in the case of an entrepreneur on the basis of each of the factors listed in Column I of Schedule I other than the factors for occupational demand and arranged employment. The applicant submits that the relevant factors in Schedule I are: education, specific vocational preparation, experience, demographic factor, age, knowledge of English and French languages and personal suitability.
[12] The applicant submits that under section 9(1)(b)(ii) of the Immigration Regulations, 1978, supra, where an immigrant makes an application for a visa, in the case of an entrepreneur, the visa officer must award the applicant at least 25 units of assessment under Schedule I.
[13] The applicant submits that the officer became biassed during the course of the interview and his failure to seek further clarification at the time or after the interview made the whole decision rushed and questionable.
Respondent's Submissions
[14] The respondent submits that the visa officer reasonably determined that the applicant did not meet the definition of "entrepreneur" and that his application for permanent residence should be refused.
[15] The respondent submits that it is clear from the visa officer's CAIPS notes, refusal letter and affidavit that the visa officer was fair to the applicant and afforded him the opportunity of responding to his concerns about his application.
[16] The respondent submits that the alleged errors of fact and law referred to by the applicant do not show that the visa officer placed reliance on irrelevant or extraneous considerations, exercised his discretion in bad faith, or contravened the principles of natural justice, such that this Court should intervene.
[17] The respondent submits that the applicant has the burden of establishing that he has a right to enter Canada, and that the applicant failed to discharge that burden.
[18] The respondent submits that the application should be dismissed with costs.
[19] Issues
1. Did the visa officer make a reviewable error in determining that the applicant did not meet the definition of entrepreneur?
2. Did the visa officer err in law by ignoring evidence properly presented before him?
3. Did the visa officer err in law by basing his decision on erroneous findings made in a perverse or capricious manner?
4. Did the visa officer err in law by breaching procedural fairness?
Relevant Statutory Provisions, Regulations and Rules
[20] Subsection 8(1) of the Immigration Act, R.S.C. 1985, c. I-2 states:
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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.
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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.
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[21] The following definition appears in subsection 2(1) of the Immigration Regulations, 1978, supra:
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"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 commencial venture;
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« 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;
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[22] Subparagraph 9(1)(b)(ii) of the Immigration Regulations, 1978, supra states:
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9. (1) Subject to subsection (1.01) and section 11, where an immigrant, other than a member of the family class, an assisted relative, or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if
. . .
(b) where the immigrant and the immigrant's accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8,
. . .
(ii) in the case of an entrepreneur or a provincial nominee, he is awarded at least 25 units of assessment, and
. . .
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9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si:
. . .
b) lorsqu'ils entendent résider au Canada ailleurs qu'au Québec, suivant son appréciation de l'immigrant ou du conjoint de celui-ci selon l'article 8:
. . .
(ii) dans le cas d'un entrepreneur ou d'un candidat d'une province, il obtient au moins 25 points d'appréciation,
. . .
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[23] Subsection 23.1(1) of the Immigration Regulations, 1978, supra states:
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23.1 (1) Entrepreneurs and their dependants are prescribed as a class of immigrants in respect of which landing shall be granted subject to the condition that, within a period of not more than two years after the date of an entrepreneur's landing, the entrepreneur
(a) establishes, purchases or makes a substantial investment in a business or commercial venture in Canada so as to make a significant contribution to the economy and whereby employment opportunities in Canada are created or continued for one or more Canadian citizens or permanent residents, other than the entrepreneur and the entrepreneur's dependants;
(b) participates actively and on an on-going basis in the management of the business or commercial venture referred to in paragraph (a);
(c) furnishes, at the times and places specified by an immigration officer, evidence of efforts to comply with the terms and conditions imposed pursuant to paragraphs (a) and (b); and
(d) furnishes, at the time and place specified by an immigration officer, evidence of compliance with the terms and conditions imposed pursuant to paragraphs (a) and (b).
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23.1 (1) Les entrepreneurs et les personnes à leur charge constituent une catégorie réglementaire d'immigrants à l'égard desquels il est obligatoire d'imposer les conditions suivantes au droit d'établissement:
a) dans un délai d'au plus deux ans après la date à laquelle le droit d'établissement lui est accordé, l'entrepreneur établit ou achète au Canada une entreprise ou un commerce, ou y investit une somme importante, de façon à contribuer d'une manière significative à la vie économique et à permettre à au moins un citoyen canadien ou un résident permanent, à l'exclusion de lui-même et des personnes à sa charge, d'obtenir ou de conserver un emploi;
b) dans un délai d'au plus deux ans après la date à laquelle le droit d'établissement lui est accordé, l'entrepreneur participe activement et régulièrement à la gestion de l'entreprise ou du commerce visé à l'alinéa a);
c) dans un délai d'au plus deux ans après la date à laquelle le droit d'établissement lui est accordé, l'entrepreneur fournit, aux dates, heures et lieux indiqués par l'agent d'immigration, la preuve qu'il s'est efforcé de se conformer aux conditions imposées aux termes des alinéas a) et b);
d) dans un délai d'au plus deux ans après la date à laquelle le droit d'établissement lui est accordé, l'entrepreneur fournit, à la date, à l'heure et au lieu indiqués par l'agent d'immigration, la preuve qu'il s'est conformé aux conditions imposées aux termes des alinéas a) et b).
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Analysis and Decision
[24] Issue 1
Did the visa officer make a reviewable error in determining that the applicant did not meet the definition of entrepreneur?
In his affidavit, the visa officer deposed in part as follows:
I asked Mr. Szeto what his relations would be with large groups such as Atlas, MacCosham, Allied and others. I asked him if there were small companies active in the market. He answered that so far he had seen large companies, no small companies. He said that he was planning to visit Toronto again in April to inquire. I asked him if he would be competing against the large companies. He did not answer. I then asked him if he had enquired why there are not more small companies in Canada. He answered that he had just visited Canada several times and he had obtained all the information from his friend. He said that he had not studied the market enough yet.
. . .
I asked Mr. Szeto if his friend already had a Company of his own. He did not reply. I told Mr. Szeto that in the beginning of the interview he had told me that he wanted to start his business with a friend. I asked him who this friend was. He said that his name was Sam Lee. I asked Mr. Szeto what was his friend doing. He answered that his friend was involved in trading business in Canada and had his won business. Mr. Szeto said that his friend sourced goods from China to sell in Canada. He said that his friend rented a warehouse and had employees working for him.
I told Mr. Szeto that he often refers to his friend who provide him with info on the transportation business and I asked "who is this person". He answered that he had met someone in a real estate agency who referred him to a freight forwarding company.
. . .
I then told Mr. Szeto that he had not showed to my satisfaction that he has the ability to set up or take part in a business and manage it successfully in order to create at least one employment opportunity besides his dependents. He therefore could not qualify as entrepreneur. I told him that the reasons for which I came to this conclusions were the following:
1) although Mr. Szeto showed proof that he is involved in two businesses, the accumulated profits over the years are marginal, and do not indicate that these businesses are successful.
2) the fact that he could not show a successful business record makes more important the preparation of a good business project. But, although he had travelled 4 times to Canada, he did not show to my satisfaction that he had planned his business in Canada in a way to ensure that there would be a market for its products and that he could be successful. He had no answers to some basic questions I would expect someone should ask oneself before getting into business. The fact that he could not describe Mr. Payer, or did not know if he was still working for MacCoshsam, is not a problem in itself, but the fact that later in the interview he said that he had only shaken his hand and was not sure when they had actually met, while earlier in the interview he showed me his business card to show that he had done research and had contacts in the transportation industry in Canada, casts doubt on the research he claimed to have done concerning his future business in Canada.
3) Mr. Szeto had not showed to my satisfaction that he could establish a successful business, or at least a business with more than marginal profits in Hong Kong, a country he knows well, and in which he has already several business contacts. He did not show to my satisfaction that he could successfully establish or get involved in a business in Canada, a country where he has very few business contacts, does not know the business environment very well and does not speak the language.
[25] I have compared these parts of the affidavit with the visa officer's CAIPS notes and the two basically correspond. It is my view that the visa officer's decision that the applicant did not meet the definition for "entrepreneur" was a decision that the visa officer could have come to on the facts that he considered. The applicant's evidence with respect to his proposed activities in Canada was not very detailed but rather was of a general nature. It is not the role of this Court to replace the visa officer's decision if the decision was one that the visa officer could reasonably have made. I am therefore of the conclusion that the visa officer's decision that the applicant did not fit the definition of "entrepreneur" was a reasonable decision (see [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada [1982] 2 S.C.R. 2 at pages 7 - 8).
[26] In Bakhshaee v. Canada (Minister of Citizenship and Immigration) (1998) 45 Imm. L.R. (2d) 196 (F.C.T.D.), the Court approved of the visa officer's decision that the applicant could not be an entrepreneur because the applicant was vague about his proposed business and its viability and had done no research into potential customers and other aspects of setting up a business. The present case is similar in the information about the proposed business is general. The visa officer has not made a reviewable error when he found that the applicant did not meet the definition of "entrepreneur". The onus was on the applicant pursuant to section 8 of the Act to demonstrate that he is eligible to enter Canada.
[27] Issue 2
Did the visa officer err in law by ignoring evidence properly presented before him?
I have reviewed the file and I cannot come to the conclusion that the visa officer erred in law by ignoring evidence properly presented before him. The visa officer considered the applicant's experience and success.
[28] Issue 3
Did the visa officer err in law by basing his decision on erroneous findings made in a perverse or capricious manner?
The visa officer based his decision on findings made from the evidence that was placed before him by the applicant. There were no erroneous findings made by the visa officer.
[29] Issue 4
Did the visa officer err in law by breaching procedural fairness?
The applicant seems to say that the visa officer did not provide him with an opportunity to disabuse the visa officer's concerns about his application. However, a review of the CAIPS notes establishes that the visa officer did at the end of the hearing, tell the applicant of his concerns. The applicant could have addressed these concerns at that time.
[30] I find that the visa officer did not make any reviewable error and therefore, the application for judicial review is dismissed.
[31] There are no special reasons to award costs pursuant to Rule 22 of the Federal Court Immigration Rules, 1993, SPR/93-22, as amended by SOR/98-235.
[32] Neither party wished to submit a serious question of general importance for my consideration.
ORDER
[33] IT IS ORDERED that the application for judicial review is dismissed.
[34] AND IT IS ORDERED that there is no award as to costs.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
March 22, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1683-00
STYLE OF CAUSE: Kam Hung Szeto and the Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 20, 2001
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE O'KEEFE
DATED: March 22, 2002
APPEARANCES:
Mr. John Y.C. Lee FOR APPLICANT
Ms. Deborah Drukarsh FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. John Y.C. Lee FOR APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada
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