Date: 20020523
Docket: IMM-5368-01
Neutral Citation: 2002 FCT 592
BETWEEN:
YONG BIN ZHANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The Applicant brings this judicial review of a visa officer's decision, dated October 28, 2001, to refuse his permanent resident application because he did not meet the definition of "investor" as defined in the Immigration Regulations, 1978, (the "Regulations"). Implicit in the decision is that the Visa Officer felt that the Applicant was simply an employee in the company, in charge of tobacco sales, with very little control or knowledge of the overall business.
[2] The central issue in this judicial review is whether or not the Visa Officer erred in concluding that the Applicant had not "successfully operated, controlled or directed a business".
[3] The record indicates that the Visa Officer considered each of the three elements of the definition disjunctively as required by well-established authority of this Court. However, in my opinion, the conclusions reached are unreasonable in light of the documentary evidence before her.
[4] In making his application, the Applicant relied on a management contract under which he conducted his employment activities (Tribunal Record, p.60). The contract specifically states that the Applicant has the "entire right of management and shall be responsible for its own profit and loss" in the business. While the Respondent is correct in stating that mere ownership is not sufficient to meet the definition of investor, the contract is a significant factor which was not mentioned in the Visa Officer's reasons.
[5] However, the management contract is addressed by the Visa Officer at paragraph 13 of her affidavit where she expresses two concerns regarding the validity of the arrangement (Respondent's Record, Tab A). If these concerns were indeed a factor in reaching her decision, then I find that the Visa Officer breached the duty of fairness by not raising the concerns with the Applicant and affording him an opportunity to respond.
O R D E R
Accordingly, the Visa Officer's decision is set aside and the matter is referred back for redetermination by a different visa officer.
(Sgd.) "Douglas R. Campbell"
Judge
Vancouver, British Columbia
May 23, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5368-01
STYLE OF CAUSE: Yong Bin Zhang v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: May 23, 2002
REASONS FOR ORDER OF THE COURT BY: Campbell J.
DATED: May 23, 2002
APPEARANCES:
Dennis Tanack FOR APPLICANT
Kim Shane FOR RESPONDENT
SOLICITORS OF RECORD:
Dennis Tanack FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia
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