Federal Court Decisions

     Date: 19990105

     Docket: IMM-1776-98

Between :

     YIU FAI KONG

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

PINARD, J. :

[1]      This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of the decision of N. Israeli, a visa officer at the Canadian Embassy in Manila City, Philippines, dated February 24, 1998, refusing the applicant's application for permanent residence as an "entrepreneur".

[2]      The decision refusing the applicant's application for permanent residence reads as follows:

I have determined that you do not meet the definition of entrepreneur for the following reasons:

1)      I am not satisfied that you have acquired the knowledge and ability to establish and provide ongoing participation in the management of a business in Canada. Although you have accumulated substantial experience in the renovation of houses in Hong Kong, this alone does not convince me that you have the ability to establish a business in your own right in Canada; and

2)      your lack of preparation, including the lack of effort and progress to learn at least one of Canada's two official languages and your lack of knowledge of the Canadian business environment underline the improbability for successful establishment of a business in Canada.

[3]      Subsection 2(1) of the Immigration Regulations, 1978 (the Regulations) defines an entrepreneur as follows:

"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;

"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;

[4]      Section 23.1 of the Regulations further provides that:

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 the entrepreneur's landing, the entrepreneur      (a) establishes, purchases or makes a substantial investment in 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);      [ . . . ]

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 une 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);      [ . . . ]

[5]      According to Waldman¹, an applicant for the entrepreneur class must meet the following requirements²:

"13.374      At the interview, the applicant would be assessed on a modified version of the points system. To satisfy the visa officer, two concepts must be dealt with: ability and intent. While the definition does not mention a successful track record or experience, the most common means of establishing ability is by demonstrating a successful record in business. Lack of experience in itself, however, is not grounds for refusal. Intent is usually proven by providing evidence of the applicant's preparation for establishing a business in Canada. . . . Formal business plans are no longer essential; but the applicant must be able to demonstrate that the appropriate attention has been paid to markets, financing, government assistance and other issues which are associated with the successful start up, investment in, or acquisition of a business. . . .

(viii) Business Proposal

"13.390      There is no requirement that an entrepreneur present a business proposal to the visa officer. However, the applicant must satisfy the visa officer that he or she has a concrete plan of action, and a clear understanding of market and economic conditions in Canada. . . .

[6]      Waldman also notes that in making the determination of whether or not the applicant is an "entrepreneur", the visa officer will be under a duty to act fairly, and to give the applicant an opportunity to address any concerns³.

[7]      The visa officer therefore had to determine if the applicant had the intent and the ability to establish, purchase or make a substantial investment in a business or commercial venture in Canada, as set out in the Regulations.

[8]      In the case at bar, it is clear that the visa officer felt that the applicant did not have the ability or intent to establish a business but she did not inquire as to whether the applicant had the ability or intent to purchase or make a substantial investment in one, when this latter option was clearly indicated as follows on his application⁴:

I intend to invest $100,000 to 150,000 in either one of the above businesses. I intend to hire two people one to do sales and one to do the actual work. I will also consider going into business with a local person if a suitable partner can be found, or to buy an existing business similar to the ideas that I have stated before.

[9]      In Ali Bakhshaee and M.C.I. (July 8, 1998), IMM-367-98, Décary J., dealing with an applicant's argument that the duty of fairness required the visa officer, once he had found that the applicant did not have the ability to establish a business in Canada within the definition of "entrepreneur", to go on and assess the applicant's ability to purchase or make a substantial investment in a business, stated the following:

[4]      This argument is based on a wrong premise. It is not fairness, but the Regulations that impose a duty on a visa officer to determine whether the conditions of the definition are met. Under part (a) of the definition, an applicant has the option of seeking admission as "entrepreneur" on the basis of his intention and ability "to establish, purchase or make a substantial investment in a business or commercial venture in Canada". An applicant may well decide to base his application and submit evidence with regard to only one of the three options, in which case a visa officer need not, of course, examine the other options. In the case at bar, the applicant limited himself to allegations and evidence pertaining to the establishment of a business. The visa officer cannot be faulted for not having examined the other options,with respect to which there was simply no evidence.

[10]      The implication from that decision is obvious: when an applicant, like in the present case, clearly indicates on his application his willingness to buy an existing business, there is a duty on the visa officer to assess such an applicant's ability or intent to do so, as an intention and ability to purchase a business in Canada constitutes an essential part of the definition of "entrepreneur" in the Regulations.

[11]      Consequently, the application for judicial review is allowed, the decision of N. Israeli, a visa officer at the Canadian Embassy in Manila City, Philippines, dated February 24, 1998, refusing the applicant's application for permanent residence as an "entrepreneur", is quashed and the matter is referred back to another visa officer at the Canadian Embassy in Manila City, Philippines, for redetermination.

[12]      I agree with counsel for the parties that this matter does not raise any question of general importance for the purpose of certification.

                            

                                     JUDGE

OTTAWA, ONTARIO

January 5, 1999

__________________

     ¹      L. Waldman, Immigration Law & Practice (Toronto: Butterworths, 1998) at "13.374.

     ²      Ibid. at "13.390

     ³      Ibid. at "13.377.

     ⁴      Applicant's Record, tab 4, page 178.