Date: 20000106
Docket: IMM-1286-99
BETWEEN:
JUNG SUNG WANG, TSUI TAO WANG,
KAI LIN WANG, CHI WEI WANG, HSIU YUN WANG,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBÉ, J
[1] The applicants seek a judicial review of the decision of the Immigration and Refugee Board (Appeal Division) (the "Appeal Board"), dated February 22, 1999, dismissing the appeal of the applicants from a removal order made against them on May 14, 1997.
FACTS
[2] The applicant applied for permanent residence in Canada as an entrepreneur and included in his application his wife and three children. They were landed in Canada on October 12, 1993, and accepted the conditions of landing entitled "Universal Terms and Conditions of Landing", R 23.1(1)(a) to (d).
SUBMISSIONS
[3] The applicants submitted to the Appeal Board and to this Court that the conditions imposed on them are void because they are not the conditions authorized to be imposed pursuant to Section 23.1 of the Immigration Regulations, 1978.
[4] Box 43 of the Immigrant Visa of each of the applicants states that the conditions of landing imposed are:
| "THE TERMS AND CONDITIONS PROVIDED FOR IN PARAGRAPHS 23.1(1)(A) TO (D) OF THE IMMIGRATION REGULATIONS, 1978 , AS SET OUT IN THE ATTACHMENT TO THIS FORM" |
and the Attachment itself is headed "Universal Terms and Conditions of Landing R23.1(1)(a) to (d).
[5] Section 23.1(1) of the Regulations reads 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 entrepreneur"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); |
| (c) furnishes, at the times and places specified by an immigration officer, evidence of efforts to comply with the terms and conditions imposed pursuant to paragraphs (a) and (b); and |
| (d) furnishes, at the time and place specified by an immigration officer, evidence of compliance with the terms and conditions imposed pursuant to paragraphs (a) and (b). |
[6] The Universal Terms and Conditions of Landing, R 23.1(1) reads as follows:
| Within a period of not more than two years after the date of the entrepreneur"s landing: |
| (a) the entrepreneur shall establish, purchase or make 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) the entrepreneur shall participate actively and on an on-going basis in the management of the business or commercial venture referred to in paragraph (a); |
| (c) the entrepreneur shall furnish evidence of efforts to comply with the terms and conditions imposed by: |
| (i) sending his mail-in card to the Regional Business Immigration Coodinator of Employment and Immigration Canada of the province or territory in which he lives within the period between the entrepreneur"s date of landing and six months from that date; and |
| (ii) reporting to the nearest Canada Immigration Centre (CIC), or any other place or places specified in writing by an immigration officer, at least once within each of the following periods: |
| - between six and twelve months from the entrepreneur"s date of landing; |
| - between twelve and eighteen months from the entrepreneur"s date of landing; |
| - between eighteen and twenty-four months from the entrepreneur"s date of landing; and |
| (d) the entrepreneur shall report to the nearest CIC within a period of not more than two years after the entrepreneur"s date of landing to furnish evidence of compliance with the terms and conditions imposed. |
[7] The applicants allege that these conditions imposed upon them are not the conditions authorized by section 23.1(1) of the Immigration Regulations, 1978 and that they differ in three significant respects.
[8] First, Regulation 23.1(1)(d) requires the entrepreneur to furnish, at the time and place specified by an immigration officer, evidence of compliance with the terms and conditions imposed pursuant to paragraphs (a) and (b). In the Attachment, section (d) requires the entrepreneur to report to the nearest CIC within a period of not more than two years after the entrepreneur"s date of landing to furnish evidence of compliance with the terms and conditions imposed. Therefore Regulation 23.1(1)(d) authorizes a condition requiring the entrepreneur to furnish evidence of compliance with paragraphs (a) and (b), but not paragraph (c). Section (d) of the Attachment imposes a condition to furnish evidence of compliance with all of the conditions imposed - (a), (b) and (c).
[9] Secondly, Regulation 23.1(1)(c) authorizes an immigration officer to specify times and places at which an entrepreneur must furnish evidence of efforts to comply with the terms and conditions imposed pursuant to paragraphs (a) and (b). It does not authorize an immigration officer to specify the method by which the entrepreneur shall furnish evidence of efforts to comply. Section (c) of the Attachment specifies the method by which the entrepreneur must furnish evidence of his efforts to comply. Subsection (c)(i) of the Attachment requires the entrepreneur to send in a mail-in card to the Regional Business Immigration Coordinator of Employment and Immigration Canada of the province or territory in which he lives within six months of landing. Further the mail-in card contains only one question relating to efforts to comply with terms and conditions. The rest of the card relates to providing information to track the entrepreneur.
[10] Thirdly, Regulation 23.1(1)(c) and (d) require the imposition of a condition giving an immigration officer the power to specify the time and place at which an entrepreneur must furnish evidence of efforts to comply with the terms and conditions imposed and furnished evidence of compliance, respectively. Section (c) of the Attachment gives an immigration officer the power to specify the place at which the entrepreneur must report, but the times at which the entrepreneur must report are specifically set out and are therefore fixed. No power is given to an immigration officer to specify times other than those listed. Section (d) of the Attachment specifies both the time and the place at which the entrepreneur must furnish evidence of compliance. No power is given to an immigration officer to specify time or place.
[11] The Appeal Board heard the same argument to the effect that "Immigration officials overstepped their authority by fundamentally changing the meaning of section 23 of the Regulations". The Appeal Board, while agreeing "with the appellants that this appears to be what has transpired" but nevertheless, found that the appellants "have not provided any satisfactory evidence of how this has acted to adversely affect them". The Appeal Board also held that "in any event, no evidence was adduced that the appellants were not clear on, or otherwise confused with, the meaning of the terms and conditions of their landing". The Appeal Board also noted that "the appellants had not contested the legality of this reporting request prior to this hearing. Furthermore how this method of reporting has acted to adversely affect the appellants was not satisfactorily outlined". The Appeal Board concluded that it was satisfied that the departure orders are valid in law.
ANALYSIS
[12] I cannot find that the Appeal Board erred in law. The Universal Terms and Conditions document does not vary substantially the terms and conditions as outlined in section 23.1(1) of the Immigration Regulations, 1978. It merely summarizes the contents of that regulation. Paragraphs (c) and (d) of section 23.1(1) provide an immigration officer with the authority to specify how an entrepreneur shall furnish evidence of compliance with paragraphs (a) and (b) of the Regulation. It differs from R.23.1(1) only insofar as it provides the specifics of how the entrepreneur must furnish evidence of compliance, that is, by sending in a mail-in card to the Regional Business Immigration Coordinator and by reporting to the nearest Canada Immigration Centre within specified periods.
[13] The facts demonstrate clearly that the applicants have knowingly contravened the terms and conditions of the Regulations. The history of this case is outlined by the Adjudicator G.S. Wojtowicz to the effect that the principal applicant, as an alleged entrepreneur, made no investments in property or equipment or in processes of any kind: "there was no investment of any sort". The Adjudicator concluded that to say that the principal applicant has met the requirements of landing "would in his opinion be a mockery of the entrepreneurial program.". The applicants clearly did not meet either the conditions imposed upon them by the Regulations nor the conditions they agreed to under the Universal Terms and Conditions.
[14] The purpose of the Universal Terms and Conditions of Landing is not to vary subsection 23.1(1) of the Immigration Regulations nor is it to increase the powers and authority of the immigration officers but merely to facilitate the understanding of the Regulation in question and to set out the method under which the entrepreneur meets the efforts of compliance with the terms and conditions of the Regulations more particularly by sending his mail-in card to the Regional Business Immigration Coordinator of Employment and Immigration Canada and by reporting the nearest Canada Immigration Centre in the course of specific periods of time. The entrepreneur has to fulfil his requirements within two years. It is useful to all concerned to report progress.
[15] Consequently, this first prong of attack is not a valid ground for reviewing the decision of the Appeal Board.
APPLICANT CHIH WEI WANG
[16] One of the sons of the principal applicant, Chih Wei Wang married Racqel Desiree Albert, a Canadian citizen, on November 30, 1997 and there is one child of that marriage, who is also a Canadian citizen named Jacob Lee Wang, born November 6, 1998.
[17] The Appeal Board noted that Chih Wei Wang explained that he currently attends school and expects to go to University to study computer sciences. Also that he lives at the home of his wife"s parents and is, for the most part, maintained financially by the principal appellant. He explained to the Board that he would be greatly affected should he be deported as he would have to leave his wife and son behind and would no longer be able to fulfil his dreams.
[18] The Appeal Board noted that "the case of Chih Wei Wang is more problematic" than the rest of his family as he has definitely become more established in Canada as a result of his marriage and the subsequent birth of their child. Yet the Appeal Board noted that he is a high school student largely dependant on his father for survival. These comments appear to be consistent with the facts of the case and not unreasonable.
[19] It is well established that the Appeal Board must examine all of the circumstances of the case in order to determine whether or not a person should be removed from Canada. That discretion is properly exercised where it is done bone fide, uninfluenced by irrelevant considerations, and where it is not exercised in an arbitrary or illegal manner.
[20] In this case it appears that Chih Wei Wang is a high school student largely dependant on his father for survival, that he already lives with his wife"s family, that his wife is a Canadian citizen and can sponsor him if she wishes to do so.
[21] Consequently, I cannot find that the Appeal Board"s decision with reference to Chih Wei Wang is unreasonable.
DISPOSITION
[22] This application for judicial review is dismissed. There is no question of general importance to be certified.
(Sgd.) "J.E. Dubé"
Judge
January 6, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1286-99
STYLE OF CAUSE: Jung Sung Wang et al
v.
MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: January 5, 2000
| REASONS FOR ORDER OF Dubé, J. |
DATED: January 6, 2000
APPEARANCES:
| Mr. Peter A. Chapman For the Applicants |
| Mr. Garth Smith For the Respondent |
SOLICITORS OF RECORD:
Chapman & Company
Law Corporation
| Vancouver, BC For the Applicants |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |