Date: 20000307
Docket: IMM-1897-98
BETWEEN:
CHI-WOO NG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLAIS, J.
[1] This is an application for judicial review of the decision of visa officer, N. Israeli, second secretary of the Canadian Embassy in Makati, Metro Manila, Philippines, dated March 3, 1998, wherein the applicant"s application for permanent residence was refused.
Facts
[2] The applicant is a citizen of British overseas. He applied for permanent residency as an entrepreneur.
[3] From August 1985 to August 1986, he was employed as manager with Wah Luen Sightseeing Photo Co. He then worked as the business promotion senior manager at Tse Sui Luen Jewellery Company Limited until August 1991. From that time on until March 1993, he was the General Manager of King Harbour Chinese Arts & Crafts Centre. The applicant then returned to his previous position with Tse Sui Luen Jewellery Company Limited. This company has 19 branches in Hong Kong and more than 1000 employees. The applicant is based at the head office and supervises 60 sales staff through four direct reports. The applicant also visits and maintains a relationship with travel agents who arrange to bring customers through the shops in large parties.
[4] He applied previously for permanent residency, but that application was refused in 1995, because the visa officer was not satisfied that the applicant had the overall and general business skills necessary to successfully establish in Canada.
[5] The applicant has a criminal record for accepting bribes in 1986 in assisting others in getting the necessary visa to go to Japan. The applicant was at that time working for the Japanese Consulate in Hong Kong. He was sentenced to one year imprisonment to be suspended for two years.
Decision of Visa officer
[6] The visa officer assessed the applicant under the entrepreneur category.
[7] The visa officer was not satisfied that the applicant acquired knowledge and ability to establish and provide ongoing participation in the management of a business in Canada. She noted that although the applicant has experience as a Business Promotion Manager, this alone did not convince her that the applicant has the ability to establish a business on his own. She noted that the applicant at the time of the application, promoted sales to tour groups, supervised a staff of sales assistants and maintained contact with tour group operators.
[8] The visa officer indicated that the applicant"s lack of preparation, including, his lack of knowledge of the Canadian business environment underlined the improbabilities of establishing a business in Canada. She explained that the applicant was not able to elaborate on costs associated with running a business in Canada, he had no knowledge of tax, customs duties pertaining to import/export business. Furthermore, the applicant had not taken a market research and had a very limited strategy on how to hire personnel in Canada.
[9] The visa officer concluded that the applicant did not meet the definition of "entrepreneur" and he therefore came within the inadmissible class of persons described in paragraph 19(2)d) of the Immigration Act . The visa officer then, refused the application.
The applicant"s position
[10] The applicant submits that the visa officer erred in concluding that his responsibilities did not include the overall operation of the business.
[11] In his paragraph 3, the applicant sets out the following facts:
| The applicant points to the fact that the showroom, which he manages, was operated on an independent basis such that the applicant was responsible for the budgeting, sales, marketing, accounts payable, inventory, personnel in respect of that showroom. |
| The applicant explains that although the company had a human resource division, that division"s responsibility was to recruit sales staff. As the manager of the showroom, the applicant"s duties and responsibilities included determining staffing requirements, interviewing potential employees and making final decisions in respect of hiring any particular personnel. In that regard, he was not reliant upon nor necessarily conferred with the Human Resource Division. |
| The applicant stresses the fact that although the company has a separate merchandising department, his duties and responsibilities included purchasing and inventory control as well as direct contact with suppliers to purchase goods suitable for the particular market in which his showroom operated. |
| The applicant further explains that although the company had finance and corporate investment divisions separate for the showroom division, since his showroom operated independently, his duties and responsibilities included financing, budgeting, setting sales prices, managing staff salaries. |
| The applicant argues that even though the showroom he manages is a division of Tse Sui Luen Jewellery Co. Ltd. his showroom operates independently as a separate business. |
The respondent"s position
[12] The respondent takes issue to the facts described in the applicant"s record, particularly paragraph 3 of the memorandum and paragraphs 4 and 6 of the applicant"s affidavit.
[13] The respondent submits that these paragraphs contradict the Record which was before the Visa officer, and raised an objection.
[14] As to the applicant"s statement that he owed and operated the Hong Kong souvenir shop from 1970 to 1976, the CAIPS notes indicate that the applicant worked there part-time and that the shop was owned by the applicant"s godfather and godfather"s friend.
[15] The respondent submits that where the visa officer conducts a proper assessment, gives a fair and adequate consideration to appropriate evidence and reaches a conclusion that is supported in the certified record, there can be no reviewable error.
Analysis
[16] We must first deal with the preliminary issue raised by the applicant"s new facts.
[17] In his submission to the visa officer, the applicant explained that he was responsible for strategic business planning as well as the day-to-day operations of the business including general administration and management, finances, accounting, personnel, sales promotion and quality control.
[18] The visa officer concluded:
| PI works in one of the largest showrooms- PI spends 3-4 hours in the showroom- PI is in the showroom the morning because in the afternoon he visits tour agencies-...- PI received direction from other divisions who oversee the overall running of the corporation- according to the organization chart submitted, the company has a standard structure with Human Resource/Finance/ |
| Merchandising divisions responsible for the overall function of hiring staff, setting sales targets, identifying suppliers, facilities etc. |
| However closer examination reveals that PI"s responsibility for corporate or business decisions was limited in scope. Given the organizational administration was overseen by the chairman and chief executive and corporate responsibilities and planning was handled by separate divisions, namely-Human Resources, Finance, Merchandising, Investment, etc. |
| Gave PI an opportunity to provide additional information and explained concerns. He simply reiterated that he would like a chance and that he does not know details because he has never been to Canada. |
[19] It seems to me that the information set out in paragraph 3 of the applicant"s memorandum are new facts that were not presented before the visa officer. The visa officer gave the applicant a chance to provide further details and explained her concerns. The applicant did not make use of that opportunity.
[20] This Court had held on numerous occasions that new facts will not be allowed on judicial review application. Justice Gibson explained in Kenbrent Holdings Ltd. v. Atkey (1995), 94 F.T.R. 103:
| Generally speaking, it is the nature of judicial review to determine whether or not the decision of the board, commission or other tribunal that is under review was open to it on the evidence that was before it. Thus, new evidence is irrelevant to the judicial review. |
[21] This Court"s role is to review the decision of the visa officer based on the evidence presented. Therefore, the applicant"s new facts ought to be rejected.
[22] The applicant has not established 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 facts made in a perverse for capricious manner or in that regard for the material before her.
[23] For those reasons, this application for judicial review must be dismissed.
(Sgd.) "Pierre Blais"
Judge
March 7, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1897-98
STYLE OF CAUSE: Chi-Woo Ng
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 7, 2000
| REASONS FOR ORDER OF Blais, J. |
DATED: March 7, 2000
APPEARANCES:
| Craig Iwata For the Applicant |
| Emilia Pech For the Respondent |
SOLICITORS OF RECORD:
Martin & Associates
Barristers & Solicitors
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |