Date: 20030428
Docket: IMM-2504-01
Citation: 2003 FCT 524
OTTAWA, ONTARIO, this 28th day of April 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
THANH VAN HUYNH
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review with respect to the decision of Visa Officer K.L. Tan (the "Officer") of the Canadian Embassy in Singapore, dated March 28, 2001, in which she refused the Applicant's application for permanent residence in Canada because he did not meet the definition of "entrepreneur" in s-s. 2(1) of the Immigration Regulations, SOR/78-172 (the "Regulations").
Facts
[2] The Applicant is a citizen of Vietnam, as are his wife and five children. In July 2000, he submitted an application for permanent residence under the entrepreneur category to the Canadian High Commission in Singapore. His wife and children were included in the application.
[3] The Applicant has been involved in real estate and land property development in Vietnam for close to twenty years and became a partner in the Nhan Thien Company in May 1999. The Applicant's wife does the accounting for the business. The Applicant intends to set up an import and export company in Toronto, initially to export building materials such as sand and cement from Canada to Vietnam and other countries in South East Asia.
[4] On March 28, 2001 the Applicant was interviewed by the Officer at the Canadian High Commission in Singapore.
Decision Under Review
[5] The Officer's decision is contained in her letter to the Applicant dated March 28, 2001, and reads as follows:
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, 1976.
[6] She gave the following reasons in support of her decision:
a) The Applicant was unable to explain and discuss basic management and financial aspects of his businesses;
b) The Applicant had demonstrated little motivation or initiative for his proposed move to Canada, as he had not done any research into the feasibility of establishing his intended business in Canada; and
c) The Applicant's lack of preparation and knowledge of Canadian business practices and regulations confirmed that he did not have the ability to establish an export and import business, or any other economically significant business should his original business prove untenable.
Pertinent Legislation
[7] The relevant provisions of the Regulations are the following:
| 2.(1) In these Regulations,
[...]
"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 commercial venture;
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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2.(1) Dans le présent règlement,
[...]
« 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;
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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[8] The relevant provision of the Immigration Act, R.S.C. 1985, c. I-2 reads as follows:
| 19. (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
[...]
(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.
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19. (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_:
[...]
d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire.
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Issue
[9] Did the visa officer err in rejecting the Applicant's application for permanent residence in Canada?
Arguments
Applicant
[10] The Applicant submits that the Officer denied him a full and fair interview by not giving him a meaningful opportunity to demonstrate his entrepreneurial ability. The Officer failed to talk to the Applicant about his real estate or property development ventures or his current hotel project.
[11] The Applicant further submits that the Officer failed to appreciate that much of his actual entrepreneurial experience, together with the skills he has gained along the way, are transferable to the Canadian business environment. The Applicant cites Yazdanian v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 411 to support his case. The Officer should have examined the Applicant's entire business history to consider carefully whether he possessed the entrepreneurial skills and abilities needed to meet the definition of "entrepreneur".
[12] With respect to the Officer's concerns regarding the financial records of the Nhan Thien Company, the Applicant argues that the Officer should have asked him to submit an accountant's report to substantiate or explain the records.
[13] Finally, the Applicant submits that the Officer's approach to his application was inconsistent with paragraph 23.1(1) of the Regulations, which allows an entrepreneur two years to establish, purchase or make a substantial investment in Canada. This section should guide the visa officer in the interview and assessment process and should also inform the definition of "entrepreneur" found in subsection 2(1).
[14] In the present case the Officer's approach did not conform to the intent of paragraph 23.1(1) in that it was far too narrow and placed too much emphasis on the Applicants ability to manage the proposed business rather than looking at his entrepreneurial qualifications generally. The Applicant places particular reliance upon the decision in Yazdanian, supra, for the propositions that:
a) The Applicant need not be involved in the day to-day operational activities of the proposed business to be a participant in management;
b) If a visa officer has a specific concern that could impact negatively on the application, fairness requires that he Applicant be given an opportunity to respond to that concern;
c) Clear evidence of past entrepreneurial activity and success is the key requirement under the entrepreneurial class and the Applicant clearly qualified in that regard.
Respondent
[15] The Respondent submits that the Officer did not err in her assessment of the Applicant's application as an entrepreneur.
[16] The Respondent submits that whether or not an applicant has the ability to provide active and continuing participation in the management of a business as set out in paragraph 2(1)(b) of the Regulations is irrelevant if he is found to lack the ability to establish, purchase or make a substantial investment in a business as set out in paragraph 2(1)(a). The Respondent cites Chiu v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1460. The fact that the Applicant has been in business in Vietnam for twenty years does not address the concerns raised by the Officer.
[17] The Respondent submits that the Applicant had the duty to satisfy the Officer that he had conducted thorough research into the business or industry he planned to pursue in Canada and that he would make a significant contribution to the economy. The Respondent cites Dhamee v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 109; Majeed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 742; Saadat v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 39.
[18] The Respondent further submits that the Officer did give the Applicant an opportunity to show her the blueprints of the hotel he was building in Dalat and information concerning the valuation of properties. Relevant copies of the documents were kept on file.
[19] The Respondent argues that it is not an error for an Officer to consider or refer to an Applicant's lack of experience in Canadian business practices in denying the Applicant a visa so long as the lack of experience is not the sole reason for the Officer's refusal to grant a visa. In this case, the Officer did not base her decision solely on the Applicant's lack of Canadian business experience. The Applicant was just not well-prepared for the interview and could not answer basic questions asked by the Officer.
[20] The Applicant presented a picture of hope for the future rather than demonstrating a viable proposal. The Applicant has the onus of making his case and he was given the opportunity to do so. At the end of the day, he just couldn't convince the Officer that he met the definition of an entrepreneur as required by the Regulations.
[21] With respect to the Applicant's claim that the Officer should have asked him to submit an accountant's report to substantiate or explain the financial records of the Nhan Thien Company, the Respondent argues that whether an applicant has the ability to manage a business, or participate in the management of a business, as demanded by the Regulations is a decision an Officer has to reach on the basis of all the evidence that is actually presented to her. The Respondent cites Yeung v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 792.
[22] Finally, the Respondent submits that the appropriate standard of review for discretionary decisions of visa officers is the same standard enunciated in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2. The Respondent also cites To v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 696.
Analysis
Standard of review
[23] As the Respondent argues, the standard of review for discretionary decisions of visa officers is the standard enunciated by McIntyre J. in Maple Lodge Farms Ltd., supra, at page 7:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[24] The Federal Court of Appeal adopted this standard of review for discretionary decisions of visa officers with respect to immigration applications in To, supra.
The merits of the case
[25] The Applicant submits that the Officer denied him a full and fair interview by not giving him a meaningful opportunity to demonstrate his entrepreneurial ability. However, it is clear from the Officer's affidavit as well as the CAIPS notes that she thoroughly discussed the Applicant's present business in Vietnam as well as his projected enterprise in Canada. The Applicant was given the opportunity to respond to her concerns and to present documents relating to his projects in Vietnam, copies of which were kept on the file.
[26] The Applicant further submits that the Officer failed to appreciate that much of his actual entrepreneurial experience, together with the skills he gained along the way, are transferable to the Canadian business environment, and that she should have considered his entire business history. The Officer, however, did consider the Applicant's past business experiences as well as his current projects, as she explained in the first page of her letter:
You do not meet this definition of entrepreneur because although you may have the intention to provide active and ongoing participation in an entrepreneurial enterprise in Canada, the information provided in your application and discussed at interview, you have not demonstrated that you have this ability. This conclusion was reached in discussing your duties and responsibilities in both your current and past positions, conclusively determining that your background and expertise are insufficient to satisfy me that you have the ability to establish and manage a business in Canada that would be of significant economic benefit. (Emphasis added)
[27] Given the information contained in the Officer's affidavit, the CAIPS notes, and the documents in the file before her, it was not unreasonable (let alone patently unreasonable) for the Officer to find that the Applicant lacked the ability to establish an entrepreneurial enterprise in Canada. The Applicant was unable to explain the inconsistencies in the finances of the Nhan Thien Company or to provide income tax information for the company. He also demonstrated a lack of knowledge of the Canadian market, and evaded answering directly the Officer's questions on that subject. The Applicant stated that he would spend 6 months to a year in Canada becoming conversant with the market and relevant laws.
[28] It is well within the Officer's jurisdiction to ask an applicant to demonstrate a basic understanding of the market in which he intends to do business, as this is an indication of his ability to function within that market as an entrepreneur. Chiu, supra, at paras. 7-8; Dhamee, supra, at para. 8; Majeed, supra, at para. 11. As O'Keefe J. explains in Saadat, supra, at paragraph 18, it is also important for an applicant to convince a visa officer that the proposed business will be viable:
Mr. Justice Décary made the following comments in Bakhshaee, [45 Imm. L.R. (2d) 196], at page 197:
The visa officer has explained that at the interview the applicant was vague with respect to his proposed business and its viability. The applicant did not know whether he would face competition, had no idea of current rents or salaries in Canada, had done no research into potential customers, would wait until he was admitted to Canada before investigating what the country needs and had done little, if any, research into the feasibility of establishing his proposed business.
These factors, as noted by Simpson J. in Chiu v. Canada (Minister of Citizenship & Immigration) (1996), 121 F.T.R. 39, are very much relevant to the inquiry made by a visa officer. As my colleague writes at p. 42:
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.
There is no doubt that the applicant has considerable business experience in his own country and has been successful over the years, however, he still has to meet the requirements of the Regulations in order to emigrate to Canada. The definition of "entrepreneur" contained in the Regulations states that the applicant must intend to become involved 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". It seems to me that a business must be seen to be viable by the visa officer in order to determine whether the proposed business will make a contribution to the economy or create employment opportunities. The visa officer must have information about the proposed business in order to determine the viability. In order to meet the definition of entrepreneur, the applicant must have shown to the visa officer that his proposal would have made a significant contribution to the economy and create a certain number of employment opportunities. The visa officer did not find that the applicant had so persuaded her. This is one of the reasonable conclusions that the visa officer could have reached. It is not the role of this Court to substitute its opinion for that of the visa officer, provided that the decision satisfies the criteria set out by the Supreme Court of Canada in Maple Leaf Farms v. Government of Canada [...]
[29] At paragraphs 12 and 13 of her affidavit, the Officer indicates that the Applicant did not have the basic understanding of the Canadian market necessary to establish a viable business. It is insufficient for the Applicant to assert that he intends to familiarize himself with the market and the relevant laws after moving to Canada, without first having demonstrated how he intends to establish a viable business in this country.
[30] With respect to the Officer's concerns regarding the financial records of the Nhan Thien Company, the Applicant argues that he should have been asked to submit an accountant's report to substantiate or explain the records. It was up to the Applicant, however, to convince the Officer that he met the definition of "entrepreneur". The Officer gave him and his wife the opportunity to explain the discrepancies in the records, but they were unable to do so, despite the fact that the Applicant's wife was in charge of the company's accounts. It was open to the Officer to reach her decision based on the evidence before her.
[31] Given the information before the Officer at the time of the interview, it was not unreasonable for her to have denied the Applicant's application. The Applicant did not convince her that he met the criteria for admission as an entrepreneur, and after reviewing the file I am unable to find that the Officer made any reviewable error in reaching her decision. The application for judicial review is dismissed.
ORDER
THE COURT HEREBY ORDERS THAT:
1. The application for judicial review is dismissed.
2. No question will be certified.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2504-01
STYLE OF CAUSE: THANH VAN HUYNH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 7, 2003
REASONS FOR ORDER BY: RUSSELL, J.
APPEARANCES BY: Mr. Mark Rosenblatt
For the Applicant
Mr. Michael Butterfield
For the Respondent
SOLICITORS OF RECORD: Mr. Mark Rosenblatt
Barrister & Solicitor
335 Bay Street, Suite 1000 Toronto, Ontario
M5H 2R3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20030428
Docket: IMM-2504-01
BETWEEN:
THANH VAN HUYNH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER