Date: 20000403
Docket: IMM-5394-98
BETWEEN:
KAI WING LAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of Gregory Chubak, Vice-Consul at the Canadian Consulate General in Hong Kong (the "Visa Officer"), dated September 18, 1999, refusing the applicant"s application for permanent residence in Canada.
[2] The applicant is a 40-year-old permanent resident of Hong Kong. He applied for permanent residence in Canada as an entrepreneur and a self-employed person under the business immigrant category through the Canadian Consulate in Hong Kong.
[3] Over the past 15 years, the applicant has accumulated significant business and work experience. He first worked as a mechanic in a construction company as an employee and after several years he started his own diesel/truck repair company. Today, his company has sales of over $400,000 (Cdn.) a year and has a net profit between $60,000 and $70,000 (Cdn.) a year. The applicant has a net worth of $750,000 (Cdn.).
[4] In his application the applicant outlined the type of business he planned to establish:
| I intend to come to Canada either as a self-employed or entrepreneur immigrant. If self-employed then I will specialize in diesel engines overhaul and rebuilding and I will work out of my own work shop. This I know is quite common in Canada. We just take the engines but not the vehicle. If I cannot come as a self-employed diesel mechanic then I will establish a truck or hydraulic shop and I will hire a licensed mechanic to do the work and myself will share my experience and knowledge with him. I will do the customer servicing and development business. I will also consider the possibilities of doing it with an existing business so that at first I don"t have to worry about getting business into the door. Once people know my workmanship then I will get referrals. In this business, the really good and effective mechanics are a minority and that is why the good ones are always busy. |
| I intend to spend $100,000 to get setup if I am doing it on my own. Or invest $100,000 if I am going to run the business with a local partner.1 |
[5] The applicant was interviewed on September 17,1998 by Gregory Chubak with the assistance of an entrepreneur.
[6] By letter dated September 18,1998 the visa officer advised the applicant that his application for permanent residence was refused.
[7] The visa officer determined that the applicant did not qualify either as an entrepreneur of a self-employed person.
RELEVANT LEGISLATION
[8] Subsection 2(1) of the Immigration Regulations, 19782 (the Regulations) defines "entrepreneur":
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[9] The definition of "self-employed" person is also provided in subsection 2(1) of theRegulations:
| an immigrant who intends and has the ability to establish or purchase a business in Canada that will create an employment opportunity for himself and will make a significant contribution to the economy or the cultural or artistic life of Canada. |
un immigrant qui a l'intention et qui est en mesure d'établir ou d'acheter une entreprise au Canada, de façon à créer un emploi pour lui-même et à contribuer de manière significative à la vie économique, culturelle ou artistique du Canada. |
ANALYSIS
[10] In the case at bar, both the refusal letter3 as well as the visa officer"s CAIPS notes reveal that the visa officer determined that the applicant did not have the ability to establish or purchase a business of significant economic benefit in accordance with the definition of "entrepreneur". The applicant argues that the visa officer fettered his discretion by failing to assess the applicant under the option "ability to make a substantial investment in a business". I agree.
[11] In Mak v. MCI,4 Campbell J. clearly noted that when assessing a potential "entrepreneur", the duty of fairness requires that a visa officer assess the applicant not only on the applicant"s ability to establish a business but also the ability to purchase or make a substantial investment in a business or commercial venture.
[12] In the present case, the only indication in respect to the applicant"s potential investment in a business lies in the visa officer"s CAIPS notes:
| PI PROVIDED THAT HE MAY RELY ON A FRIEND WHO WAS NOW LIVING IN CANADA WHO HAD INFORMALLY ASKED PI TO BECOME A PARTNER IN A SELF-SERVE GAS BAR IN RICHMOND. NO CONTINGENCY PLAN ARTICULATED. NO RESEARCH OR FEASIBILITY STUDY UNDERTAKEN DESPITE PRIOR TRIP TO CANADA.5 |
[13] I am of the view that this sole observation does not constitute an assessment of the applicant"s ability to invest in a business or commercial venture.
[14] Moreover, I do not accept the respondent"s argument that it must be presumed that the visa officer considered the resources available to the applicant and therefore his capacity to purchase an existing business in Canada since there is no evidence that this information was ignored. A thorough review of the record reveals that the visa officer did not consider the applicant"s personal net worth, nor the Business Applicant Summary wherein the applicant refers to investing $100,000 in a business,6 nor the business proposal indicating the possibility of partnership in a garage business in British Columbia.7 The only statement articulated by the visa officer regarding the applicant"s financial resources reads as follows:
| SINCE CIRCA 1984 PI HAS OPERATED A MV REPAIR FACILITY IN HK. INITIAL INVESTMENT WAS VERY LOW (AND CURRENT CAPITALIZATION ALSO LOW WITH LARGEST ASSET CONSISTING OF MODEST ACCOUNT RECEIVABLE). PI DESCRIBED BUSINESS AND PROVIDED PHOTOGRAPHS. BUSINESS IS VERY RUDIMENTARY.8 |
[15] Further, the Bakhshee v. MCI9 case referred to by the respondent can be distinguished from the present case given that the applicant inBakhshee limited himself to allegations and evidence pertaining to the establishment of a business. In the case at bar, the applicant did not base his application and submit evidence with regard to only one of the three options of the definition of "entrepreneur".
[16] As a result, I am of the view that the visa officer fettered his discretion in failing to consider the applicant"s ability to invest in a business as well as ignored evidence before him relating to the applicant"s financial resources.
[17] Given my findings I believe that it is not necessary to address the other arguments advanced by counsel for the applicant.
[18] Accordingly, the decision made by the visa officer, Gregory Chubak, is set aside and the matter sent back to another visa officer for redetermination.
[19] Counsel for the applicant requests the following question for certification:
| Whether a visa officer has a duty to assess an applicant for business immigration under alternate categories, if so requested by the applicant? |
[20] In the case at bar, the visa officer assessed the applicant as an entrepreneur and a self-employed person. Thus, I am not satisfied this is the proper case to certify this question.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
April 3, 2000.
__________________1 Certified Tribunal Record at page 21.
3 Applicant "s Record at page 54.
4 (1997) 38 Imm. L.R. (2d) 15.
5 Affidavit of Kai Wing Lam, Exhibit B.
6 Certified Tribunal Record at page 21.
7 Applicant "s Record at page 18.