Date: 20030508
Docket: IMM-3010-01
Neutral citation: 2003 FCT 575
Toronto, Ontario, Thursday the 8th day of May, 2003
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
YI MING YANG
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a citizen of China who submitted an application for permanent residence under the investor category. On May 14, 2001, the Applicant attended an interview with a Visa Officer (the "Visa Officer") at the Consul in Hong Kong in order to determine his eligibility.
[2] The Applicant challenges by way of judicial review the Visa Officer's decision to refuse his application for permanent residence. It seems that the Visa Officer was not satisfied that the Applicant had "controlled, operated or directed a business" as required by the definition of "investor" in the Immigration Regulations. The issue in the present case concerns the sufficiency of the decision rendered.
[3] It is agreed that there is no reason on the face of the Record to suspect the evidence the Applicant supplied as to the nature and success of the business in which he performed the role of general manager, head shareholder, and strategic planner. In support of his application, the Applicant provided a written explanation of his experience in business management which details his productivity over the last 20 years from a worker to a 29% shareholder in a highly successful industrial firm employing more than 300 people (Tribunal Record, pp. 12-16). Thus, the written evidence supplied by the Applicant on the Record gives very specific and detailed information about his management role with the company he developed. It appears that the Applicant's rejection by the Visa Officer does not stem from this unchallenged factual background, but from the Applicant's performance at the oral interview which was conducted through an interpreter.
[4] There is no doubt that the Visa Officer conducted a very detailed examination of the Applicant in the oral interview. However, in the Visa Officer's decision letter of May 17, 2001 the Applicant is told that some of his answers were "vague and general in nature", he was "unable to provide details" to questions concerning the future of the business, was not "specific about how [he] had lead the company" with reference to the Applicant's statement that one of his roles in the company was to lead the other three shareholders, he "did not name the brands of the furniture" that the company produced, and with respect to the operating expenses of the company, "failed to give other operating expenses". With respect to these conclusions drawn from the evidence provided at the oral interview, the Visa Officer simply said "you failed to satisfy me that you met the definition of investor and therefore the selection criteria for immigration in the investor category" (Tribunal Record, pp. 2-3).
[5] Thus, the decision reached the Visa Officer does not supply a reason for concluding that the Applicant failed to meet the investor test; that is, no meaning was put to the factual conclusions drawn as a result of the oral interview. On reading the decision, I find that a reasonable conclusion to draw is that, for some reason, the Visa Officer was suspicious of the Applicant's evidence. On the face of the Record there is absolutely no reason to suspect the truthfulness of the evidence the Applicant gave about his participation with the business. It appears, however, that the Visa Officer found it necessary to even go to the point of examining the Applicant on the brand names of the furniture that the business produced. It is not inconsequential that, subsequent to rendering the decision, the Visa Officer made the admission that, indeed, the Applicant had supplied this precise detail.
[6] In the end result, I find that the Visa Officer's inability or unwillingness to put meaning to the negative conclusions he drew about the Applicant's oral evidence, on the precise facts of this case, renders the decision as patently unreasonable. In my opinion, the decision reached by the Visa Officer cannot be supported by the evidence.
ORDER
Accordingly, the Visa Officer's decision is set aside and the matter is referred back to a different visa officer for redetermination.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-3010-01
STYLE OF CAUSE: YI MING YANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, MAY 8, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
APPEARANCES BY: Ms. Carla Sturdy
For the Applicant
Mr. Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD: Ms. Carla Sturdy
Barrister & Solicitor
Lewis & Associates
290 Gerrard Street East
Toronto, Ontario
M5A 2G4
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030508
Docket: IMM-3010-01
BETWEEN:
YI MING YANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER