Cheng v. Canada ( Secretary of State )
T-41-94
Cullen J.
29/8/94
5 pp.
Application to quash denial of application for permanent residence in Canada under "investor program" as immigration officer not satisfied applicant had successfully operated, controlled or directed business within meaning of Immigration Regulations, 1978, s. 2 -- Applicant Sales Manager for one of largest toy manufacturers in Hong Kong since 1982 -- Responsible for all aspects of sales in Hong Kong region and mainland China since 1992, and supervising 14 out of 40 sales staff -- Immigration Manual Guidelines stating category not limited to owners, presidents or vice-presidents, but intended to extend to persons holding post of significant responsibility, such as manager of particular division or section of larger company -- Applicant alleging immigration officer wrongly interpreted phrase "operated ... a business or commercial undertaking" as requiring applicant to be responsible for operating company as whole, as opposed to recognizing applicant's role in operating part of company for which responsible -- Application allowed -- Officer's decision contrary to Immigration Manual Guidelines -- While guidelines not legislative in nature, ought to be followed by immigration officer in making decision so that some consistency achieved within department -- Officer not following policy -- Importing additional requirements into criteria for qualifying for investor program, namely operation or responsibility for operation of company as whole -- If applicant responsible for operation of integral, profit-generating part of business, ought to have met criteria absent some other factor -- Only such factor, added requirement of operating business as whole, meaning only those few at top of corporate ladder qualifying, while others in positions of otherwise great practical responsibility would not -- Strict reading of definition of investor not consistent with departmental policies as set out in Regulations or expressed in guidelines -- Immigration officer erring in law -- By imposing own criteria for definition of investor on circumstances of applicant, officer fettering discretion -- Parties affected by policy entitled to be treated in consistent manner, not to arbitrary addition of criteria by each particular immigration officer -- On rehearing applicant must have opportunity to explain how qualifying as someone gaining experience as senior manager in company -- Immigration Regulations, 1978, SOR/78-172, s. 2 (as am. by SOR/89-585, s. 1).