Date: 20020415
Docket: IMM-3400-00
Neutral citation: 2002 FCT 430
BETWEEN:
YAN ZHAO XIONG,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] Yan Zhao Xiong, in his application for judicial review, requests that the May 30, 2000 decision of a visa officer at the Canadian Consulate General in Hong Kong, denying his application for permanent residence in Canada, be quashed and that the respondent be directed to process the application in a favourable manner or alternatively, that the application be referredback to the Canadian Consulate General for consideration by a different visa officer.
[2] The applicant is a citizen of China. He is a successful Chinese businessman with more than 20 years experience in the seafood industry, at least 10 of which have been in management. His experience involves marketing crabs and more recently, the cultivation of crabs to meetmarket demand. The applicant says that he has established business agreements in several cities in China with respect to the cultivation aspect of his business. In June 1998, the applicant took what he termed an "exploratory trip" to Canada to investigate the possibility of livingand doing business in Canada.
[3] On August 11, 1998, the applicant applied for permanent residence in Canada as an entrepreneur who would establish a business in Canada. The applicant was interviewed by the visa officer on May 23, 2000. By correspondence dated May 30, 2000, the visa officer refused the applicant's application for permanent residence on the basis that he did not meet the definition of "entrepreneur" having failed to satisfy the officer that the business that the applicant proposed to establish in Canada would make a significant contribution to the economy or that it would create jobs. Additionally, the officer was not satisfied that the applicant had the ability to provide active and ongoing participation in the management of the business or commercial venture.
[4] The applicant says that the visa officer erred in her interpretation of the law, made erroneous findings of fact, ignored relevant evidence, failed to consider relevant evidence and violated the principles of natural justice.
[5] Before dealing with the applicant's arguments, the matter of the Computer Assisted Immigration Processing System (CAIPS) notes of the visa officer requires mention. When the applicant filed his Notice of Application for judicial review on June 29, 2000, he included a request that the Canadian Consulate General in Hong Kong send a certified copy of its record to the Court and to the applicant pursuant to Rule 318 of the Federal Court Rules. The tribunal forwarded a record to the parties and the Court. The copy of the record forwarded to the respondent's counsel included a copy of the CAIPS notes. Through oversight, the copies forwarded to counsel for the applicant and the Court did not include the CAIPS notes. Upon the error being discovered, the CAIPS notes were forwarded immediately. The applicant was granted two extensions of time, on consent, for cross-examination of the visa officer to remedy any prejudice to the applicant arising from the tribunal's late filing of the CAIPS notes. The applicant was also granted the right to file a supplementary record. At the outset of this hearing, counsel for the applicant raised the issue of the CAIPS notes and indicated that he was troubled that the notes had been received outside of the time prescribed by the Rules without the necessity of a motion. However, counsel also stated that he was not seeking a remedy in this regard. Counsel referred to and relied on the CAIPS notes during his argument and therefore the hearing proceeded as if the irregularity with respect to filing had not occurred. Therefore, I do not feel it necessary to give this matter any further consideration.
[6] To return to the applicant's arguments, the applicant submits that the visa officer's refusal letter is nothing more than a "boiler plate" letter, is completely unacceptable and cannot be found to fulfil the duty to give reasons. The applicant says that Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.), supports this position. The applicant aknowledges the existence of the visa officer's affidavit but says that he is unsure that the refusal letter is to be read in conjunction with other documents.
[7] Secondly, the applicant argues that the visa officer elevated the "business plan" factor to a level where it became the sole basis for the decision. In so doing, the officer erred in law by focusing on the plan rather than the individual. The applicant challenges the officer's conclusion that the proposed business would not make a significant contribution to the economy and says that the evidence supported a finding that an opportunity to develop a crab cultivation farm existed in Vancouver and a sales point existed in Toronto. Additionally, the applicant intended to invest $150,000 into the business and hire two employees.
[8] The applicant also submits that the visa officer violated the principles of procedural fairness by failing to consider relevant evidence, i.e. the merit and experience of the applicant. The argument is that the applicant's success as an entrepreneur in China and his exploratory visit to Canada were not sufficiently considered by the visa officer. Further, the officer made an erroneous finding of fact when she concluded that the applicant had not done sufficient preparation to begin a new business.
[9] Lastly, the applicant challenges the conclusion that he would not be involved in the management of the business or commercial venture. Again, the submission is that this conclusion ignores the evidence of success that the applicant has achieved in the seafood industry. Overall, says the applicant, the lack of consideration of merit and ability is just not fair.
[10] The respondent's position is that the application to enter Canada as an immigrant gives rise to a discretionary decision on the part of the visa officer that must be made on the basis of specified statutory criteria. 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 Court should not interfere. To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. 696 (C.A.), Pourkazemi v. Canada (Minister of Citizenship and Immigration) (1998), 161 F.T.R. 62 and Kuo-Ting v. Canada (Minister of Citizenship and Immigration) (1997), 38 Imm. L.R. (2d) 1 (F.C.T.D.)
[11] The respondent submits that the applicant was aware of the reasons for the visa officer's decision since they were explained to him at the interview. Each of the factors considered by the visa officer were relevant to her decision. The respondent notes, in particular, questions regarding the business environment in Canada, the applicant's business plan and the applicant's language ability. The visa officer, says the respondent, did not ignore evidence. Rather, she was not as persuaded by some of the applicant's evidence as the applicant would have preferred. The fact that the applicant was a successful businessman in China was not determinative of his ability to establish a successful business in Canada.
[12] Section 2(1) of the Immigration Regulations, 1978, SOR/78-102 defines "entrepreneur":
| "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 commencial venture; |
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« 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;
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[13] Regarding the duty to give reasons, the correspondence of the visa officer dated May 30, 2000 sets out the definition of "entrepreneur" and informs the applicant that he has not met the test. The affidavit of the visa officer sets out, in detail, the reasons for her decision. It is the uncontradicted evidence of the visa officer that she explained her concerns to the applicant at the conclusion of the interview, informed him of the refusal and provided him with the opportunity to ask questions, rebut or provide additional information. I am not persuaded that theapplicant's argument with respect to the duty to give reasons, in the circumstances, has merit. The applicant had access to the reasons for the visa officer's decision, which is sufficient. Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[14] The visa officer, in her affidavit, deposes that she was not satisfied that the business that the applicant proposed to establish in Canada would make a significant contribution to the economy, nor that it would create jobs. The officer concluded that the applicant's business plan was vague and that his research into setting up a business in Canada was weak and unsubstantiated. He had no concrete plans about the crab breeding and sales business and was unrealistic about business prospects. Although the applicant stated that he would hire employees, their duties were ill-defined. The fact that the applicant was ill-prepared for setting up a business reflected on the possibility of its success. In view of her conclusion that the applicant had not done the necessary preparation to begin a new business, the officer found it difficult to determine how his business would be able to create employment opportunities.
[15] Although the applicant argued that the visa officer failed to consider the applicant's experience and his exploratory trip to Canada, the Tribunal Record does contain a wealth of information in relation to these factors and they are reflected in the visa officer's notes. Much time was spent during the interview discussing the applicant's trip to Canada. Although the applicant indicated a willingness to invest $150,000 into the business, there was no indication of the cost of starting such an operation. The applicant's market research was limited to seven or eight seafood stores in Toronto's Chinatown district (although the applicant was only able to discuss information from one store), one supermarket, the hotels where the applicant ate and information gathered from a friend.
[16] The visa officer's evidence also stated that the applicant does not speak, read or write English, had weak knowledge of the seafood business in Canada and little knowledge of the environment in Toronto and Vancouver. The officer thus concluded that the applicant did not have the ability to provide active participation in the management of the business.
[17] The applicant had every confidence in his ability to be successful. When the visa officer provided him with an opportunity to respond to her concerns, the applicant stated that in his business, unlike any other, there is no need to perform any market research prior to market entry. Although he may not know of his competition and the crab breeding market, with his experience and business sense, he will make a name for himself and eventually gain respect from the customers.
[18] I am unable to conclude that the visa officer elevated the business plan factor to a level where it was the basis of her decision. Nor do I find that the officer ignored relevant evidence or considered irrelevant evidence. The factors considered by the visa officer were germane to herdetermination. While the officer may not have found the evidence of the applicant persuasive, she did not ignore it. The weighing of relevant factors is the responsibility of the Minister or his delegate. Minister of Citizenship and Immigration v. Alexander Henri Legault, 2002 FCA 125at paragraph 11.
[19] Having considered the contents of the Tribunal Record, including the applicant's application and supporting documents, the affidavits of the applicant and the visa officer and the submissions of counsel, I find that the visa officer's conclusions were reasonably open to her. The application for judicial review is therefore dismissed.
[20] Counsel did not suggest a serious question of general importance, therefore no question is certified under subsection 83(1) of the Immigration Act.
_____________________________
Judge
Ottawa, Ontario
April 15, 2002