Date: 19980108
Docket: IMM-3130-95
BETWEEN:
YAU WOO SO,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBÉ, J.
[1] This application is for a judicial review of the decision of Immigration Officer, Lourdes Fernandez at the Canadian Embassy in Mexico City, Mexico, dated October 17, 1995, denying the applicant's application for permanent residence in Canada in the entrepreneur category.
[2] The applicant is a 44-year old permanent resident of Hong Kong who has worked for the Wing Lung Bank as an assistant bank account supervisor from July, 1973 to March, 1994 and as a supervisor for the Credit Department from April of 1994. Under his position the applicant had the responsibility for approving credit facilities to customers and for supervising the day-to-day operations of the Credit Department. The Department was comprised of seventeen people.
[3] The applicant further advised the Immigration Officer that he also had some experience in his family's textile business until the age of 17 when it was sold. He was also involved for a period of 10 months on a part-time basis in a company dedicated to publishing a weekly magazine.
[4] As for his business plan in Canada, the applicant who has a net worth of $888,000.00 (cdn) indicated that he would establish a restaurant or a fruit exporting business in Kamloops in conjunction with his brother. He believes that an investment of $100,000.00 - $150,000.00 (cdn) would be sufficient to purchase or establish a viable business employing at least 2 or 3 people.
[5] After reviewing the applicant's file, the Immigration Officer concluded that his track record failed to demonstrate that he could provide active and on going participation in the management of a business as required under subsection 2(1) of the Immigration Regulations, 1978 (the "Regulations"). This conclusion was largely based on the fact that the Immigration Officer felt that the applicant was not involved in the management of the bank and thus merely performed as an employee and not an entrepreneur.
[6] Entrepreneur is defined as follows under the definition subsection 2(1) of the 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;...". |
[7] Paragraphs 23.1(1)(a) and (b) further provide as follows:
| "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 entreprenueur'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);...". |
[8] In her affidavit, the Immigration Officer stated that she determined that he was not "a general manager of the bank or a manager of any branch". She added that "considering his experience in the overall context, he did not have the necessary experience to run a business in Canada".
[9] There is nothing in the Regulations which specifically requires that an applicant under the entrepreneur category have the prior experience of running or managing a business. An entrepreneur under the Regulations is an immigrant who has the ability to establish, purchase or make a substantial investment in a business or commercial venture in Canada and who intends and has the ability to provide active and on going participation in the management of that business.
[10] In the present instance, the applicant has the ability to make a contribution of $100,000.00 - $200,000.00 (cdn) on a venture in Canada and he intends to provide active and on going participation in the management of such a business. Thus, the sole question to be resolved is whether or not he has the ability to provide active participation in the management of the business in question. Obviously, the fact that he may have worked until the age of 17 in his family's textile business is not an indication of such an ability. And his 10 month involvement on a part-time basis in the publishing of a weekly magazine is not much of a factor either. However, the applicant is not merely a bank teller, according to his affidavit. He supervises a staff of 17 people in his branch and is in charge of the day-to-day operations of the bank. More importantly, he has the authority to approve credit facilities to the customers of the bank. And in such a capacity he has to deal with business people so as to assess the viability of their businesses.
[11] The Regulations do not require an applicant to launch a new business venture by himself. It is sufficient if he makes a substantial investment in a commercial venture in Canada and if he has the ability to participate in the management of that business, precisely what the applicant intends to do in association with his brother. On that score the words of my colleague, Campbell, J. in Mak v. Canada (Minister of Citizenship and Immigration) (1997) 38 Imm. L.R. (2d) 15 at page 19, become very relevant:
| "When assessing the application of a potential 'entrepreneur', the duty of fairness requires a visa officer to assess the applicant, not only on the applicant's ability to establish a business but also the ability to purchase or make a substantial investment in a business or commercial venture. Since in this case the visa officer did not do this, I find a reviewable error occurred.". |
[12] With reference to the imported requirements into the criteria for qualifying as an investor that the applicant be manager or top executive of a company, this reasoning from my colleague, Cullen, J. in Cheng v. Canada (Secretary of State) (1994) 25 Imm. L.R. (2d) 162, bears reproduction, at page 166:
| "I believe that she has imported additional requirements into the criteria for qualifying for the investor program, namely the operation, or responsibility for the operation, of the company as a whole. Indeed, if she found that the applicant was responsible for the operation of an integral, profit-generating part of the business, then he ought to have met the criteria absent some other factor. In the case at bar, the only such factor I can see is the added requirement of operating the business as a whole. This means that only those few at the actual top of the corporate ladder would qualify, while others in positions of other wise great practical responsibility would not.". |
[13] Consequently, the decision of the Immigration Officer is set aside and the matter is referred back to another Visa Officer for re-determination in accordance with these reasons. There is no serious question of general importance in this matter to be certified under subsection 83.1 of the Immigration Act.
(Sgd.) "J.E. Dubé"
J.F.C.C.
Vancouver, British Columbia
8 January, 1998
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3130-95
STYLE OF CAUSE: YAU WOO SO,
Applicant,
- and -
THE MINSTER OF CITIZENSHIP
| AND IMMIGRATION, |
Respondent.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: January 05, 1998
REASONS FOR ORDER OF THE COURT BY: DUBÉ, J.
DATED: January 08, 1998
APPEARANCES:
| Mr. Lawrence Wong for Applicant |
Ms. Leigh Taylor for Respondent
SOLICITORS OF RECORD:
Mr. Lawrence Wong for Applicant
| Lawrence Wong & Associates |
George Thomson for Respondent
Deputy Attorney General of Canada