Federal Court Decisions

     IMM-1345-96

BETWEEN:

     TENG KUO-TING,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

PINARD J.

         The applicant seeks judicial review of a decision of M. Lourdes Hernandez, Designated Immigration Officer at the Canadian Embassy, Mexico City (the "visa officer"), denying the applicant's application for permanent residence in Canada under the Entrepreneur category.

         Subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172, 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 ongoing participation in the management of the business or commercial venture;

         By letter dated February 27, 1996, the visa officer refused the applicant's application for permanent residence in Canada in the Entrepreneur category. The visa officer indicated:

In my opinion you do not meet this definition of entrepreneur because as discussed during your interview on February 26, 1996 you do not have the ability to establish and provide active and on-going participation in the management of the business in Canada.

         After detailing the work experience of the applicant, the visa officer came to the following conclusion:

From the above I can only conclude that you have been performing the duties related to those of a manager operations and as a consequence your work experience does not prepare you to start and/or manage a business in Canada.

         In the recent decision in To v. Canada¹, the Federal Court of Appeal discussed the standard of review applicable to a visa officer's decision to refuse an applicant for permanent residence in the Entrepreneur category. Mr. Justice Stone made the following observations, at pages 2 and 3:

The appellant's application to enter Canada as an "entrepreneur" immigrant from Hong Kong gave rise to a discretionary decision on the part of the immigration officer which was required to be made on the basis of specified statutory criteria. The appellant's intention was of establishing a business in Canada. The "ability" so required was one of the relevant criteria.

Here, the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court:

. . . It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. 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 courts should not interfere.

In our view, these requirements, to the extent that they apply, have been met in this case. Accordingly, no basis has been shown for interfering with the decision of the Trial Division.

(My emphasis.)

         Upon reviewing the evidence, including the visa officer's affidavit and her cross-examination on that affidavit, it is my opinion that, to the extent that they apply, the requirements set out in Maple Lodge Farms Limited as they are referred to in To, supra, have also been met in this case. Accordingly, no basis has been shown for interfering with the decision of the visa officer.

         Consequently, the application is dismissed. This is not a matter for certification.

OTTAWA, Ontario

May 7, 1997

                                

                                         JUDGE

__________________

     ¹      (May 22, 1996), A-172-93.