Wednesday, October 20, 2010

ENTREPRENEUR APPLICANT FAILURE TO REMOVE CONDITIONS

This is a very interesting case. There are very few reported cases on the subject of removal of conditions under the Entrepreneur category. It is essential that immigrants who obtain permanent residency have a good understanding of what is required to comply with the conditions set out in the entrepreneurial visa.


Lee v. Canada (Minister of Public Safety and Emergency
Preparedness)


Chan Su Lee, Eun Jeang Chang, Sung Eun Lee, Sung Min Lee,
appellants, and
Minister of Public Safety and Emergency Preparedness,
respondent

[2010] I.A.D.D. No. 80
[2010] D.S.A.I. no 80
Nos. MA9-06949, MA9-06950, MA9-06951, MA9-06952

Immigration and Refugee Board of Canada
Immigration Appeal Division
Montreal, Quebec

Panel: Mariam S. Pal

Heard: January 6, 2010.
Decision: January 22, 2010.
(18 paras.)
________________________________________

Removal Order Appeal

Reasons for Decision

1 These are the reasons for the decision in the appeal of Chan Su LEE and family1, the Appellants, who appealed a removal order made by the Immigration Division following a determination that they failed to comply with the conditions set out in the sections 98(1) and 98(3) of the Immigration and Refugee Protection Regulations (the Regulations)2 of the Immigration and Refugee Protection Act (the Act),3 which states:

• Permanent residence

• 98. (1) Subject to subsection (2), an entrepreneur who becomes a permanent resident must meet the following conditions:

• (a) the entrepreneur must control a percentage of the equity of a qualifying Canadian business equal to or greater than 33 1/3 per cent;
• (b) the entrepreneur must provide active and ongoing management of the qualifying Canadian business; and
• (c) the entrepreneur must create at least one incremental full-time job equivalent in the qualifying Canadian business for Canadian citizens or permanent residents, other than the entrepreneur and their family members.

• Applicable time

• 98. (3) The entrepreneur must meet the conditions for a period of at least one year within the period of three years after the day on which the entrepreneur becomes a permanent resident.
2 The Appellants were issued with a deportation order on April 23, 2009.4

Issue

3 The Appellant does not challenge the legal validity of the Immigration Division's decision but argues that the appeal should be allowed on the basis that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case, taking into account the best interests of any child directly affected by the decision.

Decision

4 The Panel has come to the conclusion that the departure order is valid in law. However, there are sufficient humanitarian and compassionate grounds, in light of all the circumstances of the case, taking into account the best interests of any child directly affected by the decision, for it to decide in the Appellant's favour. Therefore the appeal is allowed.

Background

5 As background, the Appellant is 43 years old and a citizen of the Republic of Korea. The Appellant obtained permanent resident status on December 29, 2004, having successfully applied to come to Canada under the entrepreneurial class. The Appellant's spouse and daughters are, respectively, 42, 17 and 12 years old. They are also citizens of the Republic of Korea. The Appellant's spouse and daughters became permanent residents of Canada on December 30, 2004 although they had been physically present in Canada since September 2003 as the two children were attending school in Canada.

Analysis

6 The Appellant does not challenge the legal validity of the departure order. He admits that he was not physically in Canada "to provide active and ongoing management of his business" as required under section 98(1)(b) of the Regulations although his family did meet the requirements for residency. On the basis of that evidence and the materials contained in the Record6 or otherwise tendered in evidence, the Panel finds that the Appellant has not met the requirements imposed under section 98(1) and 98(3) of the Regulations and the departure order issued for him, and as a consequence for his family members, is valid in law.
7 However, the Panel also has the discretion to allow the Appellant's appeal on humanitarian and compassionate grounds, taking into account the best interests of a child directly affected by the decision, in all the circumstances of the case. The Panel is guided in its decision-making by the factors first outlined in the Ribic case and endorsed in the Supreme Court of Canada decisions in Chieu and Al Sagban7. The Panel is of the opinion that these factors, while not exhaustive, are helpful in considering whether to exercise its authority to grant special relief under sections 67 or 68 of IRPA. These factors are:

• - The seriousness of the offence or offences leading to the deportation;
• - The possibility of rehabilitation;
• - The length of time the Appellant has been in Canada and the degree to which the Appellant is established;
• - The impact the Appellant's removal from Canada would have on members of the Appellant's family;
• - Family in Canada and the dislocation to that family that deportation of the Appellant would cause;
• - The support available for the Appellant not only within the family but also within the community and the degree of hardship that would be caused to the Appellant by his return;
• - The hardship the Appellant would face in the country to which he would likely be removed.

8 These factors are not exhaustive and the weight to be given to each of them may vary depending on the circumstances of the case.
9 All four Appellants testified under oath at the hearing.
10 The Appellant testified that when he arrived in Canada, he set up a company by the name of Voyages Altima8. The company had three main activities: (a) running winter and summer ca
mps for students coming to Canada from Korea, (b) facilitating Korean students coming to Canada to study in Canadian schools and (c) providing services to people coming to Canada from Korea. The Appellant testified that the most important activity that he was involved with was identifying potential students who could come to Canada from Korea to study in Canadian schools or attend camp in Canada. The Appellant testified that in order to identify potential clients for his business, it was important that he made contacts in Korea with immigration agencies and similar companies. This required that he stay in Korea for long periods of time after he had landed in Canada. The Appellant testified that as president of his company, he was responsible for all administration, for funding his company and for hiring people. In addition, he also made all financial and contractual decisions, determined pricing and services offered and assessed whether students needed after school tutoring or special support once they had arrived in Canada. His income was derived from two sources: (a) he charged a premium to his clients in addition to the school board fees that they paid to attend educational institutions in Canada and (b) he received fees from the school boards in Canada who utilized his services to identify Korean students coming to study in Canada.
11 The Appellant explained to the tribunal that he hired a Canadian, Mr. K., to help him with his business9. Mr. K. has lived in Canada for several years and was therefore more familiar with the Canadian business environment than was the Appellant. As a result, the Appellant explained, he relied on Mr. K. to help him run the business. Prior to working for him, Mr. K. had operated an immigration consulting business but in 2006, he shut down his operation and began to work exclusively with the Appellant. The Appellant testified that his Canadian venture, Voyages Altima, ceased operations in 2009.
12 Under Canadian law, immigrants who landed in Canada are expected to demonstrate their commitment to Canada by "providing active and ongoing management of the qualifying Canadian business"10. The fact that the Appellant's failure to be sufficiently present in Canada as required by the law gave cause for a departure order to have been made against him is sufficient proof of the seriousness of this offence. However, the Appellant testified that he needed to spend a considerable amount of time in Korea in order to make the contacts necessary for his new business in Canada. The Appellant also explained to the Panel that since April 2009, he has launched a new business venture, an Internet café, which is based in Canada and for which no travel outside of Canada is required.
13 The Appellant has been in Canada for five years. He has established a business here which is now closed and opened a new business approximately eight months ago. His new business required a capital investment of $ 70,000. He purchased a house in May 2007 where he and his family live11. The Appellant testified that he does not own any stocks or mutual funds but that he has some savings in his bank account. Since opening his new business, an Internet café which is open 24 hours a day, seven days a week12, the Appellant works the night shift which, as he explained to the Panel, leaves very little time for community involvement. He attends church and participates in social activities with other immigrants from Korea. The Appellant testified that he attended French classes13. The Appellant's wife testified that she is involved with the Korean community centre and that she participates in events such as St. Jean Baptiste day (cooking Korean food and participating in displays on Korean culture). The Appellant's wife also teaches Sunday school and obtained a Canadian high school diploma14 in order to further integrate into Canadian life and to learn more about Canada. Both of the Appellant's daughter's testified that they have been attending school in Canada for six years15. They have learned English and French here. The daughters testified that they no longer have friends in Korea and the younger one does not have a very good knowledge of the Korean language as all of her schooling has been in Canada. The Appellant's daughter testified that their departure from Canada would be difficult for them as they are now well integrated into Canadian society.
14 The Appellant testified that he sold all of his assets in Korea before immigrating to Canada. He told the Panel that he has nothing left in Korea. Both the Appellant and his wife have immediate family living in Korea, in each case their parents and two siblings. The Appellant testified that it would be difficult for him to re-establish himself in Korea again.
15 The Panel finds that in examining the factors above, the positive factors outweigh the negative factors. The Panel attaches greater weight to the best interests of the children involved, to the degree of establishment of the Appellants and to the Appellant's efforts to start a new business. In fact, there is only one negative factor in this case and that is the Appellant's failure to abide by the conditions under which he was admitted as an entrepreneur, i.e. sections 98(1) and 98(3) of the Regulations. The Panel accepts his explanation that frequent travel and long stays in Korea were necessary for him to establish his new business. The positive factors in the Appellant's favour include the fact that the Appellant and his family are well established in Canada. The Appellant is working to establish a new business for which no travel is required. The Appellant's wife is supporting him in this venture. The Appellant's daughter's have been attending school in Canada for six years and are well integrated both socially and culturally. They have learned English and French. The Appellant's wife is involved in the local community and has made attempts to integrate into Canadian life.
16 The Panel also finds that the Appellant, who has liquidated his assets16 in his home country in order to invest in Canada, would face hardship were he to return to Korea after more than five years out of the workforce. Of greater importance to the Panel is the fact that his children, who have been attending school in Canada for six years in English and French, would have difficulty re-integrating into the Korean school system. The Panel's opinion is that their best interests would be served by allowing them to stay in Canada, complete their education and become productive members of Canadian society.
17 The evidence was given under oath and the Appellants presented as credible and believable witnesses who answered questions, on balance, in a direct and straightforward manner. The Panel is satisfied that the testimony was credible and trustworthy.
Conclusion
18 It is therefore the Panel's decision that the departure order made by the Immigration Division is legally valid. However, taking into account the best interests of a child directly affected by the decision, there are sufficient humanitarian and compassionate considerations to warrant special relief in light of all the circumstances of the case. This appeal is allowed.

NOTICE OF DECISION

The appeal is allowed. The departure order is set aside.
"Mariam S. Pal"
22 January 2010

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