Date: 19991209
Docket: IMM-1320-99
BETWEEN:
JIUFANG WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on Wednesday, December 8, 1999)
McGILLIS J.
| [1] The applicant has challenged by way of judicial review the decision dated February 1, 1999 of the visa officer, refusing his application for permanent residence in Canada. In her decision, the visa officer determined that the applicant was not an entrepreneur as defined in the Immigration Regulations, 1978, SOR/78-172, as amended. |
| [2] On March 14, 1997, the applicant, who is a citizen of China, submitted an application for permanent residence. In support of his application, he provided documentation concerning Dalian Yahua Foods Company, a company that he had owned and operated from 1992 to 1996 ("Dalian Yahua Foods"). In his application, the applicant did not mention that, in 1997, he had established another business, Dali Automobile Trading Co. Ltd. ("Dali Automobile"). |
| [3] On September 14, 1998, the applicant was interviewed by the visa officer. At the interview, he produced documentation concerning Dali Automobile and explained that he had provided the documentation to his lawyer prior to signing the application for permanent residence. The applicant had also not advised the visa officer prior to the interview that he had sold his interest in Dalian Yahua Foods in 1996 at a loss following a down-turn in sales. The interview nevertheless proceeded. |
| [4] Given the new information introduced unexpectedly by the applicant during the interview, the visa officer "...wished to make a thorough review of the information and documentation prior to making a selection decision". As a result, she informed the applicant that she would review his file and that she had "some concerns" as to whether he met the definition of entrepreneur. The visa officer did not indicate in either her affidavit or in her notes made at the time of the interview that she communicated those concerns to the applicant or that she provided him with an opportunity to respond to any concerns. |
| [5] On September 18, 1998, the visa officer reviewed the applicant's file and concluded, for various reasons, that he did not meet the definition of entrepreneur in the Immigration Regulations. At that point in time, she did not prepare a refusal letter. |
| [6] On January 26, 1999, the applicant submitted a further package of documents in support of his application. |
| [7] On February 1, 1999, the additional documents were brought to the attention of the visa officer. Since she had not yet prepared the refusal letter, she reviewed those documents and "...concluded that there was nothing in the additional documents that would alter [the] assessment made at the time of the interview". As indicated above, the visa officer did not make an assessment at the time of the interview. In any event, following her review of the file and the additional documentation, the visa officer determined that, in the absence of "any government documentation" or "any independent financial assessment" of his company, she had "little" upon which to base her assessment of his past performance in operating a business. |
| [8] By letter dated February 1, 1999, the visa officer informed the applicant that he did not have the ability to provide active and on-going participation in the management of a business or a commercial venture, as required in the definition of entrepreneur in the Immigration Regulations. She therefore refused his application for permanent residence. |
| [9] A review of the visa officer's affidavit and her notes made at the time of the interview confirms that she never informed the applicant of any of her concerns in relation to his application or provided him with an opportunity to address any concerns. In my opinion, her failure to communicate her concerns to the applicant at any stage prior to the making of the decision deprived him of the opportunity to address those concerns and resulted in a breach of the duty of fairness [See Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.)]. |
| [10] The application for judicial review is therefore allowed and the matter is remitted to a different visa officer for redetermination. The case raises no serious question of general importance. |
"D. McGillis"
Judge
Toronto, Ontario
December 9, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-1320-99 |
| STYLE OF CAUSE: JIUFANG WANG |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: WEDNESDAY, DECEMBER 8, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR JUDGMENT BY: McGILLIS J. |
DATED: WEDNESDAY, DECEMBER 8, 1999
| APPEARANCES: Mr. Samuel R. Baker, Q.C. |
| For the Applicant |
| Ms. Cheryl D. Mitchell |
| For the Respondent |
| SOLICITORS OF RECORD: Samuel R. Baker |
Barrister & Solicitor
255 Duncan Mill Road, Suite 504
North York, Ontario
M3B 3H9
| For the Applicant |
Morris Rosenberg
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 19991209
Docket: IMM-1320-99
BETWEEN:
JIUFANG WANG
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR JUDGMENT