Date: 20011212
Docket: IMM-4245-00
Neutral Citation: 2001 FCT 1368
Ottawa, Ontario, Wednesday, the 12th day of December, 2001
Present: The Honourable Mr. Justice Kelen
Between:
YING KOR LIN
PI HUI CHEN
SHENG HUNG LIN
TSUNG MIN LIN
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER AND ORDER
KELEN J.:
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, Chap.F-7, for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board ("the Board"). On July 22, 2000, the Board dismissed the appeal from the Departure Orders against the applicants.
FACTS
Entrepreneur Visa
[2] The applicants are a family from Taiwan: Ying Kor Lin, the father, husband, and
principal applicant; his wife, Pi Hui Chen; and their two minor sons, Sheng Hung Lin and
Tsung Min Lin. The applicants were landed in Canada from Taiwan on February 25, 1996 as "entrepreneurs" and "dependants". They were granted conditional permanent residence status. The conditions of their permanent resident visa required that the principal applicant, within two years, fulfill the requirements set out in section 23.1 (1) of the Immigration Regulations, 1978 SOR/78-172, as amended (the "Regulations"):
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).
Business Plan and Time in Taiwan
[3] The Board succinctly summarized the business plan at page 1 in its Reasons for Order:
Mr. Lin is a 40 year old man who was landed in Canada from Taiwan on February 25, 1996 along with his wife, Ms. Chen who is now 37 years old, and his two sons now aged 11 and 10 years old respectively. The family's visas were issued based on Mr. Lin's business plan indicating his intention to invest $350,000 in Canada, secure a warehouse, office and showroom, and establish a business importing kitchen utensils from Taiwan or Japan in the first year. He then planned to design and produce his own products including kitchen cabinets and small kitchens for offices and shops. The plan seemingly reflected the appellant's business experience in Taiwan wherein he imported and sold kitchen utensils as well as ranges, boilers, exhaust fans, and the like. Mr. Lin acknowledged that he was aware of the terms and conditions of his landing which includes that within two years of landing, he must invest in a business in which he is involved in the day-to-day management, which employs at least one Canadian resident, and contributes to the economy of Canada.
and the time the principal applicant spent in Taiwan after landing, at page 2 in its Reasons:
Within 10 days of landing, the family returned to Taiwan for the appellant's son to complete the second semester of the school year. They remained in Taiwan and returned to Canada on September 5, 1996 following summer holidays. Mr. Lin then returned to Taiwan three weeks later where he visited for two and one half months returning to Canada on December 5, 1996. This pattern of travel and living locale continued such that the first 24-month period following his landing with his family, Mr. Lin spent less than 5 months in Canada.
Concession
[4] The applicants concede that they contravened the terms and conditions of the two year visa. The principal applicant, who was granted conditional permanent residence status, failed to comply with the terms and conditions of his visa as required in section 23.1 (1) of the Regulations. In fact, the applicant spent 19 months of the first two year period in Taiwan. The applicant did not follow the business plan or investment plan upon which he obtained the visa.
Credibility and finding that applicant made no significant effort to develop a business
[5] The Board found that the principal applicant's evidence regarding his attempts to establish a business were unreliable and raised serious credibility issues. The principal applicant failed to report on his business progress as required every six months to the Immigration Department.
[6] The Board found that the principal applicant made no significant effort to develop a business, and that the principal applicant was probably continuing his business activities in Taiwan.
[7] The Board found at page 5 in its Reasons for Decision:
The Appeal Division finds that while there were seemingly cursory efforts to research several projects, the evidence is implausible and inconsistent as to what was done and when. There was no focussed or significant effort to develop a business either as originally envisioned in the business plan or with some other viable project. It is not credible that immediately after landing in Canada with a business plan that reflected his business experience in importing kitchen utensils, he would return to Taiwan and decide instead to pursue the export of pistachio nuts. Nor is it credible that it took six months in Taiwan to determine that this was not a viable project for a Canadian business. Furthermore, Mr. Lin's testimony at this hearing is in serious contradiction with what he told immigration officials of his activities in a May 1997 letter. In the view of the Appeal Division, more likely than not, Mr. Lin was continuing with his business activities in Taiwan rather than making a concentrated effort to establish a business in Canada.
[8] The Board concluded that the principal applicant's efforts to meet the terms and conditions of landing in the first two years are "questionable and minimal, and he knowingly contravened the basis of his landing".
Dorset College
[9] After the two year period specified in section 23.1 (1) of the Regulations, the principal applicant invested $150,000 in Dorset College of B.C., which investment consisted
of $1,500 for the purchase of shares and $148,500 as a shareholder loan repayable by August 1, 2002. The Board found that the principal applicant's involvement with the College was "minimal and the confusing evidence is, more likely than not, to try to enhance the appearance that Mr. Lin was a significant part of the business operations." (Board Reasons for Decision, page 9).
[10] Following the investment in Dorset College, the principal applicant spent 9 months in Taiwan reportedly recruiting students. The Board found this evidence not credible. The Board found that his activities in Taiwan during this period were focussed on his own business interests in Taiwan (Board Reasons for Decision, page 10). The Board concluded that the principal applicant's role in Dorset College has been that of a "passive investor, that the viability of the business is seriously questioned and that the principal applicant's involvement with the college will not satisfy the requirements to have the terms and conditions of his landing removed."
IMMIGRATION PROCEDURES LEADING TO DEPARTURE ORDERS
[11] On October 2, 1998, Yin Kor Lin applied to cancel the terms and conditions of the visa. The application was denied on the grounds he had failed to meet the terms and conditions of his visa, pursuant to section 23.1 (1) of the Regulations.
[12] On March 9, 1999, the immigration officer reported that the principal applicant had not established, purchased, or made a substantial investment in a business in Canada. The immigration officer noted that the applicant had not made a significant contribution to the economy of Canada; had posted no revenue; had not created or continued employment for a Canadian citizen (having only employed one person for five months); had not participated actively and on an on-going basis in the management of the business (having spent the bulk
of his time outside Canada); failed to meet the requirement to apply for the removal of terms and conditions within two years, on the basis that the conditions had all been met, and in fact had applied for the removal on October 2, 1998, eight months late.
[13] On March 9, 1999, the family was reported as being in violation of the Immigration Act, R.S.C. 1985, c. I-2, as amended, (the "Act") under subsection 27 (1)(b):
Removal After Admission
Reports on permanent residents
27.(1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who [...]
(b) if that person was granted landing subject to terms and conditions, has knowingly contravened any of those terms and conditions.
An Inquiry was held on March 25, 1999. The allegation was found to be valid and Departure Orders were issued on July 8, 1999 pursuant to section 32 (2.1) of the Act.
APPEAL TO THE BOARD
[14] On July 22, 1999, the applicant appealed the Departure Orders to the Board under section 70 (1) of the Act, which reads:
70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
[15] On April 4, 5, and 18, 2000, the Board conducted a hearing of the appeal and on July 22, 2000, rendered its decision dismissing the appeal.
BOARD'S DECISION
[16] The Board decided that the applicants have not shown why they should not be removed from Canada. At page 19 in the Board's Reasons for Decision:
Viewing the evidence overall, and considering all of the circumstances of the case, the Appeal Division finds that the appellants have not shown why they should not be removed from Canada. It is acknowledged that the terms and conditions of landing were not met, and the evidence shows that they are highly unlikely to be met given the current situation. The principal appellant has spent the vast majority of his time in Taiwan from the time of landing in 1996 until June, 1999. His original business plan was seemingly not pursued and was foregone for several other purported ventures until his involvement with Dorset College of B.C. His investment is far less that the $350,000 originally envisioned [...]
[17] The Board also considered "other compassionate circumstances that would lead to a stay or quashing of the Departure Order". The Board found that the family is not well established in Canada, that the family has all of its family members in Taiwan, that the family has been making regular visits to Taiwan, that the principal applicant has financial
assets in Taiwan, and that the principal applicant will be able to return to the family business in Taiwan which he managed until coming to Canada in 1996. Accordingly, the Board found that the situation does not warrant the exercise of the Board's discretion to stay the Departure Order in all the circumstances.
APPLICATION TO FEDERAL COURT
[18] At the hearing of this application for judicial review, the applicants conceded that they were in breach of the terms and conditions upon which the visa was granted.
[19] The only ground for the application was that the immigration officer failed to express her concerns to the principal applicant and provide the principal applicant with an opportunity of addressing these concerns before making a Report under section 27 of the Act.
The Report under section 27 of the Act identified eight material facts. The Report attaches an "Addendum" wherein the immigration officer questions the credibility of the principal applicant's investment in Dorset College, and states that the principal applicant "has participated in an artificial transaction for immigration purposes". This concern was not presented to the principal applicant and the principal applicant was not given an opportunity to respond.
[20] At this application for judicial review, the applicants submitted that the Board erred in not considering this breach of procedural fairness in the appeal under section 70 (1)(b). The applicants contend that this is one of the "circumstances" of the case which the Board ought to have considered in its Reasons. The argument is that if the principal applicant had
been given an opportunity of correcting this concern, the applicant would not have been referred for Inquiry under section 27 of the Act, which led to the Departure Orders.
[21] The respondent submits that the immigration officer did not identify or rely upon this factor in her Report under section 27 of the Act. The immigration officer was cross examined at the hearing before the Board, and confirmed this position. The Report speaks for itself, and did not identify this factor as one of the factors for the Report. The respondent also submitted that the Board did consider this "circumstance" as evidenced in its Reasons for Decision at page 15 wherein the Board sets out the applicants' position in this regard.
STANDARD OF REVIEW
[22] The standard of review with respect to the exercise of discretion by the Board is reasonableness simpliciter. In this case, the appeal is based on subsection 70 (1)(b) of the Act, namely that the Board, having regard to all of the circumstances of the case, ought to have exercised its discretion to decide that the applicants should not be removed from Canada.
ANALYSIS
Hearing de novo
[23] The appeal hearing before the Board is a hearing de novo. This Federal Court proceeding is a judicial review of the Board's Decision. The Court is not reviewing administrative actions of the visa officer, and will only review errors which were allegedly committed by the Board. In Kwan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 971, [2001] F.C.J. No.1333 (F.C.T.D.), Mr. Justice Muldoon held that the Board is conducting an immigration hearing de novo, not judicial review of alleged errors of law committed by the immigration officer. Muldoon J. summarized the law at paragraph 21:
Given the Court's findings regarding the nature of a hearing de novo, and given that this present proceeding is a judicial review of the decision of the Immigration Appeal Division, the Court declines to review the decision of the visa officer, and will review only the applicant's submissions regarding errors which were allegedly committed by the Board.
Therefore this Court will not review an alleged breach of procedural fairness by the immigration officer under subsection 70(1)(a) of the Act. In this case, the applicants concede that there is no error in law, and the alleged breach of procedural fairness by the immigration officer is not subject to judicial review as an error.
Board's discretion under subsection 70(1)(b) of the Act
[25] The applicants contend that the Board failed to properly exercise its discretion by failing to consider this alleged breach of procedural fairness as one of the "circumstances of the case" under subsection 70(1)(b). I am satisfied that the Board did take this circumstance into account and decided that it was not a material factor in the exercise of the Board's discretion.
[26] The total circumstances of the case overwhelmingly pointed in one direction so that the alleged failure of procedural fairness was rendered insignificant.
[27] The applicants' counsel conceded that the applicants had made "feeble" efforts to comply with the terms and conditions of the visa. The evidence demonstrates that the immigration officer met with the principal applicant and provided him with an opportunity to respond to the many reasons why the immigration officer concluded that the applicants would be reported under section 27 of the Act. The evidence before the Board demonstrated a blatant disregard for the terms and conditions of the visa. The principal applicant came to Canada with this visa but continued to work and live in Taiwan for most of the time. The principal applicant knowingly ignored and contravened the conditions on which he was granted entry. Moreover, the principal applicant continued to live outside of Canada for large periods of time. This is a clear case of an immigrant abusing the Canadian system, and using the appeal system to extend the stay in Canada on obviously weak grounds.
[28] Applying the standard of review of reasonableness simpliciter, the exercise of the discretion by the Board under subsection 70(1)(b) of the Act was reasonable having regard to all of the circumstances of the case. The Board did not consider the alleged breach of procedural fairness by the immigration officer to be a significant concern. The Board referred to this circumstance in its Reasons, which shows that the Board considered this
factor. I am satisfied that even if the Board did consider it to be a relevant concern, it would not have changed the decision of the Board in this case. I expressed this conclusion to the parties at the hearing.
[29] Counsel for the applicants originally requested that I certify a serious question of general importance as contemplated by section 83 of the Act. However, upon being advised of my conclusion, counsel for the applicants stated that the question would not change the disposition of the case and accordingly withdrew the request for certification.
CONCLUSION
[30] For the reasons set out herein, the application for judicial review will be dismissed.
ORDER
[1] THIS COURT ORDERS THAT this application is dismissed.
"Michael A. Kelen"
_______________________________
Judge
OTTAWA, ONTARIO
December 12, 2001