Date: 20020801
Docket: IMM-4744-00
Neutral citation: 2002 FCT 836
BETWEEN:
HYUNG KI LEE
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
Introduction
[1] These reasons arise out of an application for judicial review of a decision of a Designated Immigration Officer ("DIO") at the Canadian Embassy, Seoul, Korea, wherein the DIO denied the applicant an Immigration Visa on the basis that he did not qualify as an "investor" as that term is defined in subsection 2(1) of the Immigration Regulations, 1978 [1]. The decision under review is dated the 4th of August, 2000.
Background
[2] The applicant is a citizen of South Korea. At the date of these reasons, he is 61 years of age. He is well educated and, from the 1st of July 1976, to the 28th of February, 1999, he was employed in positions of significant responsibility with the Export-Import Bank of Korea. His application to emigrate to Canada under the investor category, was filed with the Canadian Embassy in Seoul, Korea, through an agent, under cover of a letter dated the 26th of November, 1997.
[3] The applicant and his spouse were interviewed by the DIO on the 7th of December, 1999. The DIO's CAIPS notes indicate the following:
76-99 EXPORT IMPORT BANK OF KOREA. ... LAST TITLE.. RESEARCHER. 1.6YRS BEFORE THAT? PUJANG (DEPT MGR) FOR 8 YRS. WAS PUJANG IN 3 DEPTS.. 2-3 YRS AT EACH DEPT; OVERSEAS INV INFORMATION CENTRE. IMPORT CREDIT DEPT. CREDIT POLICY DEPT.. ACTIVITIES IN CREDIT POLICY DEPT? POLICY DECISION ON CREDIT DISTR TO DIFFERENT COUNTRIES.. 15 STAFF IN THE DEPT.. IN CHARGE OF? STATS, PLANNING, DEVELOPMENT (NEW REGS). ETC. REPORTED TO EXEC DIRECTOR. THERE WERE 20 DEPTS LIKE HIS AT THE BANK... 6 EXEC DIRECTORS.. HIS DEPT MAKES RECOMMENDATION ON POLICIES AND DECISION IS MADE BY PRESIDENT OR BY BOARD OF DIRECTORS.. HIS DEPT MAKES RECOMMENDATION ON POLICIES AND DECISION IS MADE BY PRESIDENT OR BY BOARD OF DIRECTORS.. EXTEND [SIC] OF YOUR SOLE DEC AUTHO? SENDING LETTERS TO BRANCH OFFICES AFTER DECISIONS HAVE BEEN MADE. ACTIVITIES/ AUTHORITY LEVEL WERE SIMILAR IN OTHER DEPTS AS WELL.. THIS BANK IS NOT A PROFIT PURSUING OPERATION. IT'S A GOVT POLICY BANK THAT USES GOVT FUND TO GIVE MEDIUM-LONG TERM LOAN TO PROMOTE EXORT [SIC]. ACTIVITIES AS RESEARCHER? COUNTRY CREDIT ANALYSE [SIC].. ACTUAL RESEARCH WAS DONE BY STAFF AND HIS ROLE WAS AS ADVISOR. HAS BEEN MIDDLE MGR WITH LIMITED SCOPE OF ACTIVITIES AND AUTH. HASN'T OPERATED, DIRECTED, OR CONTROLLED A BIZ. ADVISED.. HE AGREES THAT HIS CAREER WASN'T BIZ OPE, DIR, OR CONTROL. REFUSED.
[4] Following the interview, the applicant provided extensive written submissions, in a letter dated the 13th of December,1999, with supporting documentation.
[5] The DIO, in a brief entry in her CAIPS notes, provides the following comment on the written submissions:
It doesn't contain sfg [significant] new info.
That comment is entered in the CAIPS notes on the 4th of August, 2000, more than seven months following the date of the written submissions.
[6] By letter dated the 4th of August, 2000, the same date as the forgoing comment entered in the DIO's CAIPs notes regarding the written submissions, the DIO wrote to the applicant rejecting his application. The rejection letter reads in part as follows:
This refers to your application for permanent residence in Canada in the investor category. I have now completed my assessment of your application, and regret to inform you that I have determined that you are unable to meet the requirements for immigration to Canada in that category. My reasons for this decision follow.
The Immigration Regulations, 1978 define "investor" as follows:
"investor" means an immigrant who
(a) has successfully operated, controlled or directed a business, ...
I have determined that you do not meet the definition of investor for the following reason. Although you stated that you had worked as a director Export-Import Bank of Korea, you admitted that your activities and responsibilities in this bank had been limited in scope and in authority. As a result, I conclude that you have not operated, controlled or directed a business. Since you do not meet the definition of "investor", you are a member of the class of persons who are inadmissible to Canada described in paragraph 19(2)(d) of the Immigration Act in that you do not comply with the requirements of the Immigration Act and the Immigration Regulations. Accordingly, I have refused your application.
...
[7] Both the applicant and the DIO filed affidavits on this application for judicial review. Neither was cross-examined. I find nothing on the face of the affidavits that significantly impacts on the foregoing background summary, except perhaps, for the assurance on the face of the DIO's affidavit that she undertook a thorough review of all the information provided both on paper and at interview, by and on behalf of the applicant. Analysis
[8] In the memorandum of fact and law filed on behalf of the applicant, seven issues are raised in which counsel for the applicant alleges the DIO erred in a reviewable manner. One of those issues alleges eight grounds on which the DIO erred:
...by perversely and capriciously fettering her discretion.
[9] On the basis of the material before me and taking into account the submissions of counsel at hearing, I conclude that the DIO made no reviewable error.
[10] In Luo v. The Minister of Citizenship and Immigration[2], Madam Justice Dawson wrote at paragraph [7]:
The definition of an investor has been considered by this Court. In Cheng v. Canada (Secretary of State) (1994), 83 F.T.R. 259 (F.C.T.D.) at paragraph 8, Cullen J. found that where an applicant applying as an investor "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". Justice Cullen expressly noted that it was not intended by the definition that an applicant must operate a wholly owned business or a wholly owned undertaking. In Tsai v. Canada (Minister of Citizenship and Immigration) (1997), 136 F.T.R. 36 (F.C.T.D.) Pinard J., reviewing a decision of Gregory Chubak, noted at paragraph 6 that there was "no requirement for an applicant in this category to have had sole or final decision-making power in a company".
[11] I took counsel to be in agreement before me that the fact that the Export-Import Bank of Korea was not a profit-oriented enterprise was not determinative on this application for judicial review. That being said, I am satisfied that the DIO made no reviewable error in determining that the applicant had not successfully operated, controlled or directed a business or an integral part of a business, whether or not that part, or the business as a whole, was profit-generating. While it may have been desirable for the DIO, in her CAIP's notes, to provide a more extensive rationale for so concluding, and perhaps to provide that rationale, together with an assurance that she had taken into account all of the oral and written representations made by and on behalf of the applicant in her decision letter, I am satisfied that her failures in that regard, if "failures" be an appropriate description, did not amount individually or collectively to reviewable error.
[12] In the result, this application for judicial review will be dismissed.
Certification of a Question
[13] Counsel for the applicant, following an indication by me at the end of the hearing of this application that I would dismiss the application, proposed a question for certification that was rather ill defined. Counsel for the respondent, recommended against certification of a question. I favour the position of counsel for the respondent particularly in this time of transition to the new regime of the Immigration and Refugee Protection Act and related Regulations. I am not satisfied that a serious question of general importance that would be determinative of on an appeal of my decision arises on the facts of this matter. No question will be certified.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
August 1, 2002
FEDERAL COURT OF CANADA
Date: 20020801
Docket:IMM-4744-00
Between:
HYUNG KI LEE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4744-00
STYLE OF CAUSE: HYUNG KI LEE
Applicant
-and-
SUZANNE TOUSIGNANT
Respondent
DATE OF HEARING: July 24, 2002
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER BY: Gibson, J
DATED: THURSDAY AUGUST 1, 2002
APPEARANCES BY: Mr. Marvin Moses
For the Applicant
Mr. Ian Hicks
For the Respondent
SOLICITORS OF RECORD: Mr. Marvin Moses
Barrister and Solicitor
480 University Avenue
Toronto, Ontario
M5G 1V2
For the Applicant
Deputy Attorney General of Canada
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent