A-362-85
Chi Cheung Hui (Appellant)
v.
Minister of Employment & Immigration and
Secretary of State for External Affairs (Respon-
dents)
INDEXED AS: HUI V. CANADA (MINISTER OF EMPLOYMENT &
IMMIGRATION) (F.CA.)
Court of Appeal, Thurlow C.J., Stone and Mac-
Guigan JJ.—Toronto, February 4; Ottawa, March
3, 1986.
Immigration — Appeal from Trial Division decision deny
ing certiorari and mandamus — Application for permanent
residence as entrepreneur refused — Ministerial policy that
only applicants with "proven track record" in business eligible
for selection as entrepreneurs — Appeal allowed — Visa
officer exceeding jurisdiction by considering ministerial policy
as not authorized by Act or Regulations — Immigration Act,
1976, S.C. 1976-77, c. 52, ss. 8(1), 9(2),(4) — Immigration
Regulations, 1978, SOR/78-172, ss. 2(1) (as am. by SOR/83-
837, s. 1), 8(1)(c) (as am. by SOR/79-851, s. 2), 9(1)(b) (as am.
by SOR/79-851, s. 3; 83-675, s. 3), 11(3) (as am. by SOR/81-
461, s. 1).
Judicial review — Prerogative writs — Certiorari — Appeal
from Trial Division's refusal to grant certiorari and man-
damus — Decision to refuse application for permanent resi
dence as entrepreneur made at preliminary stage, based on
ministerial policy — Factors otherwise required to be con
sidered not examined — Visa officer exceeding jurisdiction by
considering extraneous element not authorized by Act or
Regulations — Appeal allowed — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 18.
This is an appeal from a Trial Division decision dismissing an
application for certiorari and mandamus. The appellant's
application for permanent residence in Canada as an "entre-
preneur" was denied. The reasons given were that the appellant
had always been an employee, never owning and operating his
own business, and that the Minister had stated that "only
applicants with a proven track record in business are eligible
for selection in this category". The appellant argues that the
visa officer exceeded his jurisdiction by considering a matter
which he was not authorized by the Act or Regulations to
consider.
Held, the appeal should be allowed.
The statement in the letter to the appellant, informing him
that his application was denied, concerning ministerial policy
requiring a "proven track record in business" did form part of
the decision. The definition of "entrepreneur" in the Regula
tions does not require a proven track record in business. What
is required is "the ability to establish" a business and to provide
on-going participation in its management. The language of the
definition does not close the door to an applicant who happens
to lack such a record.
The decision was made at a preliminary or "paper screening"
stage in the assessment process. Factors otherwise required to
be considered were not examined. The effect of the decision
was the same, as it meant that the appellant could not settle in
Canada. The visa officer exceeded his jurisdiction under the
statute by considering ministerial policy, a requirement not
authorized by the language of the definition of "entrepreneur".
According to Baldwin & Francis Ltd. v. Patents Appeal Tri
bunal, [1959] A.C. 663 (H.L.), if a tribunal bases its decision
on extraneous considerations which it ought not to have con
sidered, its decision may be quashed and mandamus issued.
Because the visa officer failed to make a proper determination
under the statute and Regulations as to whether the appellant
was an "entrepreneur", his decision cannot stand. The decision
should be quashed and the appellant's application for perma
nent residence be reconsidered under the Act and Regulations
on the basis that a proven track record in business is not a legal
requirement for characterizing the appellant as an entre
preneur.
CASES JUDICIALLY CONSIDERED
APPLIED:
Anisminic Ltd. v. Foreign Compensation Commission,
[1969] 2 A.C. 147 (H.L.); Baldwin & Francis Ltd. v.
Patents Appeal Tribunal, [1959] A.C. 663 (H.L.).
REFERRED TO:
Metropolitan Life Insurance Company v. International
Union of Operating Engineers, Local 796, [1970] S.C.R.
425.
COUNSEL:
Cecil L. Rotenberg, Q.C. for appellant.
Carolyn Kobernick for respondents.
SOLICITORS:
Cecil L. Rotenberg, Q.C., Don Mills, Ontario,
for appellant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
STONE J.: This appeal relates to a decision made
pursuant to the Immigration Act, 1976 [S.C.
1976-77, c. 52] and the Regulations made there-
under. By that decision the appellant's application
for permanent residence in Canada as an "entre-
preneur" was denied. On March 7, 1985 the appel
lant brought an application in the Trial Division
pursuant to section 18 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10] for a writ of
certiorari quashing that decision and for a writ of
mandamus. That application was denied by order
of the Trial Division made on March 28, 1985
[Hui v. Minister of Employment and Immigra
tion, order dated March 28, 1985, Federal Court,
Trial Division, T-461-85, not yet reported]. That
order is the subject of this appeal.
The appellant is a resident of Hong Kong where
he was born in 1951. His application for perma
nent residence in Canada was submitted to the
office of the Commission for Canada at Hong
Kong in the month of December 1984. He and his
wife had earlier visited the City of Regina. A
solicitor's letter accompanying the application for
permanent residence described their activities
during that visit and their plans to enter business
in Regina:
This application is further submitted following a visit by both
Mr. & Mrs. Hui to the city of Regina in Saskatchewan where
they have communicated with the local office of the Saskatche-
wan Economic Development & Trade as well as various other
persons and have researched their business plan fairly
thoroughly.
Mr. & Mrs. Hui intend to purchase an existing donut business
which consists of a retail outlet and production plant that sells
on the wholesale market to customers including supermarkets
and variety stores. We enclose an outline of their business plan
together with a copy of the Share Purchase Agreement, a copy
of the lease, a letter from the Chinese Association in Regina
endorsing their venture and other relevant documents which
will assist you in assessing this application.
It should be of note to you that there is only one Chinese pastry
shop in the province of Saskatchewan and that is in Saskatoon.
Mr. & Mrs. Hui intend to take advantage of this gap in the
supply and utilize the existing established donut facilities in
order to break into the market immediately.
During their visit to Regina, they have researched business
opportunities extensively, having looked at several projects and
have had various discussions with local people including the
various acquaintances that have already immigrated to Regina,
people in the local ministry and also their lawyers.
The application for permanent residence in this
country was processed by a visa officer attached to
the Commission for Canada at Hong Kong. It was
subject to various provisions of the Act and Regu-
lations. The word "entrepreneur" is defined in
subsection 2(1) of the Regulations [Immigration
Regulations, 1978, SOR/78-172 (as am. by SOR/
83-837, s. 1)] which at the relevant time read:
2.(1)...
"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;
Additionally, paragraphs 8(1)(c) (as am. by SOR/
79-851, s. 2), 9(1)(b) (as. am. by SOR/79-851, s.
3; 83-675, s. 3), and subsection 11(3) (as am. by
SOR/81-461, s. 1) of the Regulations pertain to an
application under the "entrepreneur" category.
They read at the relevant time as follows:
8. (1) For the purpose of determining whether an immigrant
and his dependants, other than a member of the family class or
a Convention refugee seeking resettlement, will be able to
become successfully established in Canada, a visa officer shall
assess that immigrant or, at the option of the immigrant, the
spouse of that immigrant
(e) in the case of an entrepreneur or a provincial nominee, on
the basis of each of the factors listed in column I of Schedule
I, other than the factors set out in items 4 and 5 thereof;
9. (1) Where an immigrant, other than a member of the
family class, an assisted relative or a Convention refugee
seeking resettlement, makes an application for a visa, a visa
officer may, subject to section 11, issue an immigrant visa to
him and his accompanying dependants if
(b) on the basis of his assessment in accordance with
section 8
(i) in the case of an immigrant other than a retired person
or an entrepreneur, he is awarded at least fifty units of
assessment, or
(ii) in the case of an entrepreneur or a provincial nominee,
he is awarded at least twenty-five units of assessment.
11....
(3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not
awarded the number of units of assessment required by
section 9 or 10 or who does not meet the requirements of
subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is
awarded the number of units of assessment required by
section 9 or 10,
if, in his opinion, there are good reasons why the number of
units of assessment awarded do not reflect the chances of the
particular immigrant and his dependants of becoming success
fully established in Canada and those reasons have been sub
mitted in writing to, and approved by, a senior immigration
officer.
The factors referred to in paragraph 8(1)(c) are
education, specific vocational preparation, experi
ence, location, age, knowledge of English and
French, personal suitability and relatives.
Admissions to Canada are governed by Part II
of the Act. It provides in subsection 8(1) for the
burden of proof:
8. (1) Where a person seeks to come into Canada, the burden
of proving that he has a right to come into Canada or that his
admission would not be contrary to this Act or the regulations
rests on him.
Subsections 9(2) and (4) of the Act are also
relevant to an application for permanent residence.
They read:
9....
(2) Every person who makes an application for a visa shall be
assessed by a visa officer for the purpose of determining
whether the person appears to be a person who may be granted
landing or entry, as the case may be.
(4) Where a visa officer is satisfied that it would not be
contrary to this Act or the regulations to grant landing or entry,
as the case may be, to a person who has made an application
pursuant to subsection (1), he may issue a visa to that person,
for the purpose of identifying the holder thereof as an immi
grant or visitor, as the case may be, who, in the opinion of the
visa officer, meets the requirements of this Act and the
regulations.
In the material accompanying his application
for permanent residence, the appellant set out
what he described as "entrepreneurial credentials"
including his employment history. From 1969 to
1973 he was in Army Service in Hong Kong,
between 1973 and 1984 he served as both a driver
and a salesman for a Hong Kong brewery where
he had supervision of four employees, and from
1982 to 1984 he worked on night shifts as an
apprentice baker at a Hong Kong bakeshop.
By letter dated January 18, 1985 the Commis
sion for Canada informed the appellant of the
decision which had been reached regarding his
application. That letter reads in part:
All aspects of your application and business plans have been
carefully considered. As a result of this assessment, it has been
determined that your application cannot be approved in the
entrepreneur category.
Your background and employment history have been evaluated
and unfortunately you do not meet immigration selection cri
teria as an entrepreneur. This determination is based in part by
the fact that you have always been an employee and have never
owned, established or operated your own business. The Minister
responsible for Immigration has stated that only applicants
with a proven track record in business are eligible for selection
in this category.
A number of grounds were relied upon in
attacking the decision of the Trial Division. In the
view I take of the case it is necessary to consider
only one of them. The appellant argues that the
visa officer exceeded his jurisdiction in reaching
his decision by taking into consideration a matter
which he was not authorized by the Act or Regula
tions to consider. That matter, he says, is found in
the following sentence contained in the letter of
January 18, 1985:
The Minister responsible for Immigration has stated that only
applicants with a proven track record in business are eligible
for selection in this category.
The respondent seeks to answer this argument
by contending that the statement was not really
part of the decision as such but, rather, was no
more than an afterthought. I cannot read the letter
in that manner. The sentence in question appears
in a paragraph concerned with the evaluation of
the appellant's "background and employment his
tory". It is apparent from a reading of that para
graph that at least two factors were considered,
namely, that the appellant had "never owned,
established or operated" his own business and,
secondly, that the Minister's policy respecting eli
gibility called for "a proven track record in
business".
The appellant relies upon the definition of
"entrepreneur" as the basis for his argument that
the visa officer ought not to have had any regard
to ministerial policy in a matter of this kind. He
points out that "a proven track record in business"
is not required by that definition. What is required
is that the appellant have the intention and "the
ability to establish, purchase or make a substantial
investment in a business or commercial venture in
Canada" for the purposes identified therein and
"to provide active and on-going participation in
the management" of that business or venture
(emphasis added). With respect, I agree with the
appellant. Importation of "a proven track record in
business" into that definition would mean that
some applicants for permanent residence under
this category could never meet the "ability"
requirement. As I read it, the language of that
definition does not close the door to an applicant
who happens to lack such a record. It requires
simply that the applicant have the required "abili-
ty". If it were otherwise, no applicant could meet
that requirement without first establishing "a
proven track record in business". That, plainly,
was not intended by the language used.
A question remains whether in these circum
stances certiorari and mandamus lie. The decision
appears to have been made at a preliminary or
"paper screening" stage in the assessment process.
The effect of being "screened out", it was
explained, was that the appellant was found not to
fall within the definition of "entrepreneur".
Accordingly, factors otherwise required to be con
sidered in disposing of an application made under
the entrepreneur category were not reached. But
the effect of the decision was no different even
though it was reached at this preliminary stage. It
meant that the appellant could not settle in
Canada. In reaching that decision, the visa officer
was bound to apply the requirements of the defini
tion. He was not entitled to introduce into it a
requirement not authorized by its language. That
he did when he took into account ministerial
policy. When he did that, in my view, he exceeded
his jurisdiction under the statute.
As Lord Reid stated in Anisminic Ltd. v. For
eign Compensation Commission, [1969] 2 A.C.
147 (H.L.), at page 171, a person exercising a
statutory power of decision exceeds his jurisdiction
where, inter alia, his decision is based on some
matter which under relevant statutory provisions
he "had no right to take into account" (see also
Metropolitan Life Insurance Company v. Interna
tional Union of Operating Engineers, Local 796,
[1970] S.C.R. 425). That, surely, is what occurred
in this case. Lord Denning had expressed the same
view ten years earlier in Baldwin & Francis Ltd. v.
Patents Appeal Tribunal, [1959] A.C. 663 (H.L.)
where he said on his own behalf (at pages
693-694):
There are many cases in the books which show that if a tribunal
bases its decision on extraneous considerations which it ought
not to have taken into account ... then its decision may be
quashed on certiorari and a mandamus issued for it to hear the
case afresh. The cases on mandamus are clear enough: and if
mandamus will go to a tribunal for such a cause, then it must
follow that certiorari will go also: for when a mandamus is
issued to the tribunal, it must hear and determine the case
afresh, and it cannot well do this if its previous order is still
standing.
This principle, as I see it, applies with equal force
in the present circumstances where the visa officer
was required to decide the matter according to law
and not by introducing into the definition of
"entrepreneur" an extraneous element not author
ized by its language. It should be unnecessary to
point out that the statute and Regulations are law.
The statements or directions of the Minister are
not.
Assuming the appellant could be "screened out"
at this preliminary stage, it could only be done
after the visa officer had made a proper determi
nation under the statute and Regulations as to
whether he was an "entrepreneur" as defined.
That he failed to do and because of that failure the
decision cannot stand. Being of that view, I am
unable to agree with the reasons given in the Trial
Division for refusing the section 18 application. At
page 5 of his reasons for judgment the learned
Judge below said:
It is clearly not for this Court to .study an application for
entrepreneurship with the eyes of a visa officer, to add up the
merit points or units and to decide whether or not a visa ought
to be granted to him. Neither is it for the Court to substitute
itself for the visa officer and to decide whether or not the
applicant ought to be personally interviewed. That is purely an
administrative decision left to the discretion of the officer.
In the instant case, the letter of the Commission clearly
indicates that the application has been carefully considered and
that it was found not to meet the Immigration selection criteria
of entrepreneurship under the Act and the Regulations. The
"track record" comment in the Commission's letter relates to
the experience factor and does not, in my view, taint the
decision of the respondents.
With respect, in the circumstances of this case, the
visa officer went beyond his statutory mandate by
taking into account lack of "a proven track record
in business" in arriving at his decision in the
matter.
I would therefore allow this appeal with costs
both here and in the Trial Division and would
order that the decision of the respondents or some
one or more of their officers as disclosed in the
Commission's letter of January 18, 1985, be
quashed and that the respondents and their offi
cers consider and process the appellant's applica
tion for permanent residence in Canada in accord
ance with the Immigration Act, 1976 and the
applicable Regulations made thereunder on the
basis that a proven track record in business is not a
legal requirement for characterizing the appellant
as an entrepreneur within the meaning of the said
Regulations and the lack of it may not be treated
as disqualifying the appellant as an entrepreneur.
THURLOW C.J.: I agree.
MACGUIGAN J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.