Chen v. Canada ( Minister of Employment and Immigration )
T-1099-92
Rothstein J.
14/6/93
6 pp.
Application for landing under "investor" class category denied -- "Investor" defined as immigrant who has successfully "operated, controlled or directed" business or commercial undertaking -- Since graduation as civil engineer applicant employed full-time by government -- In 1977 purchased land in Taiwan for use as commercial orchard -- Personally performed sloping and contouring of land, designed and built irrigation system -- Hired manager to deal with farm operations -- Earning $60,000. Cdn. annually from farm -- Based on applicant's statements knowing little of specifics of operation of farm, visa officer determining lacked experience in "operating, controlling, or directing" commercial or business undertaking -- Despite visa officer's expressed concern about inadequate experience to qualify as investor, applicant not adding new information -- Application allowed -- Definition of "investor" only requiring applicant to demonstrate either operated or controlled or directed business or commercial undertaking -- Words in context disjunctive -- Visa officer must assess each aspect separately to determine whether applicant falling under at least one criteria -- Visa officer merely addressed whether applicant experienced in operating farm -- Failed to address issues of control, direction distinctly and specifically -- Error in law -- Control or direction not following automatically from operation -- Fact applicant owned farm, earned profits, presumably responsible for losses, suggesting prima facie involvement in control or direction -- Also denial of procedural fairness -- More than general statement of concern about qualifications required -- Fong v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 205 (F.C.T.D.) applied -- Visa officer should have questioned applicant specifically on each criteria -- To expect meaningful response to concern expressed in general way not consistent with requirements of procedural fairness -- Where requirements to be met fairly straightforward visa officer should address each requirement specifically, eliciting answers so that clear assessment can be made -- Immigration Regulations, 1978, SOR/78-172, s. 2 (as am. by SOR/89-585, s. 1).