Date: 20000605
Docket: IMM-934-98
BETWEEN:
YONG HO CHO
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a judicial review application of the decision of visa officer, Sara Trillo, Canadian Consulate General in New York, dated January 26, 1998 wherein the applicant was refused permanent residence in Canada.
FACTS
[2] The applicant applied for permanent residence in Canada as an entrepreneur. He plans to open a computer business with the help of his brother who also applied for permanent residence.
[3] The applicant claims that he opened a computer business in Seoul with his friend Mr. Kyu Young Noh in 1989. As the business grew, the company needed additional capital to expand and the applicant solicited the help of his brother Woo Hyoung Cho. The applicant"s brother was offered 20% of the shares in the business in return for his investment. The applicant and his partner each held 40% of the shares.
[4] The company bought parts from different suppliers and assembled them on its premises. Once the computers were assembled, they were tested for a day or two and then delivered to the customers.
[5] He claims that his net worth is in excess of $500,000 (Cdn), of which $240,000 (Cdn) was in liquid assets.
[6] In 1997, he visited Canada with his brother to explore the possibility of opening a computer business in Canada similar to the one they have in South Korea. They decided thereafter to apply for permanent residence.
DECISION OF THE VISA OFFICER
[7] The visa officer was of the opinion that the applicant did not have the ability to run a profitable business.
[8] She noted that the business supposedly opened in September 1990, yet the date of registration was September 1994. She noted that the business had an income of approximately $50,000 (Cdn) to be shared by the three partners. In her opinion this business did not provide them with a large profit. The visa officer pointed out to the fact that the applicant and his brother had different answers as to the profits of this business.
[9] The visa officer indicated that the applicant had $53,000 (Cdn) and plans to invest $50,000 (Cdn) in the business venture in Canada. She was of the view that this was not a sufficient fund to open a business, give employment to two persons and at the same time support himself, his wife and two children, when neither himself nor his wife spoke any of the Official Languages.
[10] The visa officer did not believe that the applicant would receive 80 million South Korean Won (KRW) from a deposit on a house lease agreement. Nor did she believe that he has property in Korea worth $200,000 (Cdn) since there was no assessment of the property which is in his father-in law"s name.
[11] She was not convinced that the applicant had sufficient knowledge about the business proposal nor that he has the ability to run the business venture, nor that it would be a profitable business whereby he would enhance the economy of Canada and provide employment opportunities for at least one Canadian citizen or permanent resident of Canada. The visa officer therefore refused the application.
THE APPLICANT"S POSITION
[12] The applicant submits that the visa officer erred in law in not considering whether the applicant had the ability to purchase a business after determining that he did not have the ability to establish a business.
[13] It is submitted that the visa officer breached the duty of fairness by failing to put her concerns to the applicant regarding his business plan.
[14] The applicant submits that there is no requirement in the Immigration Regulations that the applicant must have operated or participated in a successful business venture in the past. The visa officer has acknowledged that the applicant had business experience, but erred in importing an additional criteria that the profit was not large, that he has no past experience and his funds were insufficient.
[15] The applicant notes that the visa officer assessed him as "computer after sales maintenance" and allocated "8" points for experience out of the maximum of "8" points. After determining that he has the experience in computers, she determined that he did have past experience. The applicant submits that such finding is contradictory.
[16] The applicant further submits that the visa officer"s failure to put her concerns as to the adequacy of the funds to invest, is not only a breach of procedural fairness but also exceeded her jurisdiction.
THE RESPONDENT"S POSITION
[17] The respondent did not submit any record. The visa officer submitted an affidavit.
[18] She explains that during the paper screening he was awarded a maximum of 8 units of assessment for experience since he indicated that he was the owner of a computer company since 1989. He was then asked to an interview to verify the information provided.
[19] The visa officer states that when asked to explain why the business was opened in 1990 but registered only in 1994, he replied that the business was in somebody else"s name and that it belonged to him since 1994. When asked why he indicated that he was the owner since 1989, he explained that he was the owner but that the business was in the name of his partner"s sister.
[20] The visa officer then asked to see proof of ownership since 1989, but the applicant indicated that he could not provide such proof. He explained that they were employed by some other company and due to this they could not register a business in their name. When asked if they were working part-time, he indicated that they were working full time. The visa officer then asked why if they were working full time, they still could not register the business. His explanation was that it was his partner that was the employee.
[21] The visa officer then asked to see the balance sheets, but the applicant indicated that as it was a small business, these documents did not have to be prepared. The visa officer noted that the applicant was unable to provide any proof of the net income of this company.
[22] The visa officer was not convinced that the applicant would receive back 80 million KRW on the refund of a security deposit. Clause 4 of the terms of the lease indicated that the duration of the lease should be 24 months from December 22, 1996. Clause 8 indicated that when the lessor cancels his contract, he shall not ask for a refund. The visa officer did not believe that he would receive this money and therefore did not include it in her consideration.
[23] The visa officer noted that the applicant did not provide any proof of the value of his 40% shares in the business. The visa officer explained that there has been a devaluation in the South Korean currency. When the deposits amount were converted to Canadian dollars in January 1998, at the interview, the amount no longer reflected the amount shown on the statement printed in December.
[24] Furthermore, the bank statements submitted by the applicant show his balance in May 1997. An updated statement was presented at the interview that showed that the amount has since decreased. In December, he had in the Hanil Bank, 10,950.90USD, at the Dongsuh Securities Co. Ltd., 14,221,633KRW.
[25] As to the applicant"s net worth and liquid assets, the visa officer indicated that such proof was never provided. The visa officer pointed out to the fact that the applicant ignored the instructions in the interview letter by not bringing his wife to the interview, when it was clearly stated that she must accompany him.
ISSUES
[26] Did the visa officer err in her interpretation of the "entrepreneur" definition?
ANALYSIS
[27] Section 2(1) of the Immigration Regulations, 1978 define "entrepreneur" as such:
| "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) |
"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; (entrepreneur) |
[28] To be considered an entrepreneur, the applicant must satisfy the visa officer that he had both the intent and the ability to establish, purchase or make a substantial investment in a business. Intent can be shown by proving that the applicant prepared for his venture. Ability is often proven by past experience and sufficient funds.
[29] The applicant alleges that the visa officer imported an additional criteria to the legislation. The visa officer wrote in her refusal letter:
| This means that this business had an annual income of approximately Cdn$50,000 to be shared by you and your partners. In my opinion this business did not provide you with a large profit. The business documents which you provided did not convince me that this company has been a profitable business. You were unable or unwilling to provide any other business documents. Due to this, you were unable to convince me that you have the ability to run a profitable business. |
[30] Nowhere in the legislation is it stated that the business must have been profitable, or that he needed to have operated his own business.
[31] Nevertheless, the visa officer has to consider different factors to assess the ability of the applicant to actively manage a business in Canada.
[32] The refusal letter gave details on the evidence considered by the visa officer. In my view, the visa officer took into consideration the factors submitted by the applicant.
[33] Justice Dubé said in Hui v. Canada (1997), IMM-2502-95 (F.C.T.D.):
| The visa officer interviewed the applicant and reviewed his application for permanent residence. She concluded that he did not meet the definition of "entrepreneur" as his business in Hong Kong has shown losses or very low profits since it was established. She considered the profitability of the applicant"s business in Hong Kong as one of the factors in his ability to manage a business. |
| [...] |
| While the refusal letter does not detail all the evidence considered by the visa officer, her personal notes and her affidavit indicate that she did take into consideration all the factors raised by the applicant." |
[34] In my view, the applicant failed to establish that the visa officer erred in law or failed to observe a principle of procedural fairness or based her decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before her.
[35] This judicial review application should be dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
June 5, 2000