IMM-1260-96
BETWEEN:
SO HING CHIU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent.
REASONS FOR ORDER
SIMPSON, J.
Let the attached transcript of my Reasons for Order delivered orally from the Bench in Toronto, Ontario, the 15th day of October, 1996, now edited, be filed to comply with section 51 of the Federal Court Act.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
November 13, 1996
This is an application by So Hing Chiu (the "Applicant") for judicial review, pursuant to Section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7. Review is sought of a decision of a visa officer (the "Officer") made in Detroit on March 1, 1996, in which the Officer refused the Applicant's application for permanent residence in Canada.
THE FACTS:
The Applicant is a citizen of Hong Kong. He has a wife and three dependant children. After graduating with a bachelor of arts degree in Hong Kong, the Applicant worked primarily as a salesman until 1982. In that year, he established an import-export business in Hong Kong and, in 1985, he set up a travel company in the same city. That business involved both travel and trading which focused on Vietnam. In 1990, in collaboration with another party, the Applicant formed a third company located in Vietnam. It was engaged in importing computer parts and assembling, installing and repairing personal computers.
The Applicant has been successful in these ventures and has amassed savings and assets of over $1.5 million. The Applicant applied for permanent residence as an "entrepreneur". His stated intention is to open a trading and travel business in Vancouver, similar to the one he operates in Hong Kong. He also proposes to import computer parts from Asia and the United States, to assemble the computers in Canada, and then sell them here and through his company in Vietnam.
On February 21, 1996, the Applicant and his wife attended an interview at the Canadian Consulate in Detroit. At the interview, the Officer questioned the Applicant to satisfy herself that he met the definition of "entrepreneur" (the "Definition") in the Immigration Regulations, 1978, SOR/78-172, s. 2 (the "Regulations"). In her affidavit sworn May 1, 1996, the Officer deposes that she read to the Applicant the Definition and, on several occasions during the interview, asked him how his background enabled him to meet the Definition and how his proposed businesses would significantly benefit Canada.
The Officer deposes that the Applicant was vague at the interview about his proposed businesses and their viability. He claimed to have done research with respect to the computer business, but he did not bring any evidence to the interview, and he admitted not having researched the feasibility of the travel business. Indeed, he did not know how many travel agencies were established in Vancouver or how many of them facilitated travel to Vietnam. The Officer therefore concluded that the Applicant had done little, if any, research into the feasibility of establishing his proposed businesses. On being asked how his businesses would constitute a significant benefit to Canada, the Applicant said that he would pay taxes and planned to employ six people.
THE RELEVANT LEGISLATION
"Entrepreneur" is defined in Section 2(1) of the Regulations 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 dependents; and |
| (b) who intends and has the ability to provide active and ongoing participation in the management of the business or commercial venture. |
ISSUES AND ANALYSIS
1) The Applicant argues that the Officer wrongly imported a non-existing requirement into the Definition, namely the requirement to present a researched business plan. Put another way, the submission is that the Officer was wrong to focus on the viability of the Applicant's plans.
I am not able to agree with this submission. The Officer asked the Applicant to demonstrate a basic understanding of the markets in which he intended to do business. This he was unable to do. In my view, this line of questioning was entirely within the Officer's jurisdiction, as she is charged with determining whether the Applicant could establish a commercial venture which would employ people and contribute significantly to the Canadian economy. Such a business must, of necessity, have the potential to be a viable business.
The Applicant also submitted that the fact that other immigration officers follow up the implementation of an applicant's business plans relieves the initial interviewing officer from the need to be satisfied that a viable venture is planned. I do not accept this submission because it is for the interviewing officer to establish that an applicant meets the requirements of the Definition.
2) The Applicant submitted that the Officer ignored all the Applicant's work experience when assessing him as an entrepreneur. This submission cannot succeed. The Applicant's immigration consultant made written representations which included a review of the Applicant's work history, and the Officer's affidavit for this proceeding makes it clear that the Applicant was also given the opportunity to describe his work history during the interview. Further, the Applicant nowhere suggests that his submissions at the interview were curtailed. In these circumstances, I can find no basis for concluding that the Applicant's work experience was ignored.
3) The Applicant submits that the Officer erred in failing to assess the Applicant under Part B of the Definition. However, I have concluded that this failure was not a reviewable error on the facts of this case. Here, the Officer had concluded that the Applicant did not have the ability to establish a business described in Part A of the Definition. Part B of the Definition clearly relates back to the business described in Part A and, that being the case, there can be no need to assess an applicant's ability to manage a business if the applicant has failed to satisfy an officer that a business can be established under Part A of the Definition.
4) The Applicant takes the position that, having checked with the Department of Tourism and determined that Vancouver is home to approximately 200 travel agencies, the Officer breached the duty of fairness by not advising the Applicant of her discovery and giving him a chance to respond.
On this issue, I have three observations. Firstly, the Applicant was asked during the interview how many travel agencies carried on business in Vancouver, and he was unable to reply. Accordingly, he was aware that the issue was of interest to the Officer, but he had no information to provide. This means that the information obtained by the Officer did not contradict information supplied by the Applicant. Secondly, I should note that the Officer used the information to confirm her previous understanding. It was not new information which she relied on to change her view of the Applicant's case. It was quite clear that she was at all times aware that there were a significant number of travel agencies in Vancouver. Finally, the absolute number of agencies was of marginal relevance. The point was that the Applicant did not know whether any agencies specialized in travel to Vietnam. He had no idea of the competition he would face in his proposed business venture and, if it existed, how he might meet it effectively. For all these reasons, I can find no denial of procedural fairness.
CONCLUSION:
The application will be dismissed.
CERTIFIED QUESTION:
The question reads as follows: Can an immigration officer refuse an application for permanent residence under the entrepreneur category because an applicant's business intentions lack viability?
The Respondent has opposed the certification of this question and I am going to decline to certify. In my view, this is not a serious question of public importance. As I said earlier, the language of the Definition makes it clear that potential viability is an essential characteristic of an applicant's proposals. No officer can be obliged to decide whether a business can make an economic contribution and employ people unless, of necessity, the officer also concludes that the business has a realistic chance of success.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: SO HING CHIU
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT NO.: IMM-1260-96
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 15, 1996
REASONS FOR ORDER: SIMPSON, J.
Delivered from the Bench on: October 15, 1996
DATED: November 13, 1996
APPEARANCES:
Mr. Max Chaudhary for Applicant
Mr. James Brender for Respondent
SOLICITORS OF RECORD:
Mr. Max Chaudhary for Applicant
Barrister & Solicitor
North York, Ontario
George Thomson for Respondent
Deputy Attorney General
of Canada