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“Management” Requirement for Investor Class Immigrants needs Defining, Senior Federal Court Judge Suggests

The Acting Chief Justice of the Federal Court of Canada in a recent decision expressed concern over the absence of a definition for the term “management” in the eligibility criteria for investor class immigrants in either the Immigration and Refugee Protection Regulations (IRPR) or the Immigration Manual (IM). Without guidance on this point, the judge noted, immigration officers may potentially make arbitrary and differing decisions on the same facts.

Under the IRPR (subsection 88(1)), in order to be considered an investor, an applicant must have business experience in either the management of a qualifying business or the management of at least five full-time employees in a business. While the IRPR defines the terms “investor” and “business experience”, it does not define the term “management”. The Immigration Manual is similarly silent on this question, breaking down “business experience” into three criteria: qualifying business; time; and role (see IM, OP 9 – Investors at s 8.2). The first two criteria are described in greater detail in sections 8.3 and 8.5, but the Manual provides no guidance on the “role” criteria.

“Without providing any guidance on this point,” the judge wrote, “immigration officers are left to determine on their own the necessary responsibilities fitting the ‘management’ requirement. This has the potential to lead to arbitrary and differing decisions on the same set of facts, especially given the shared meanings of terms such as ‘managing’ and ‘supervising’ and the potential difficulties of translating business terms from one language to another.”

The Chief Justice nevertheless upheld the immigration officer’s decision in this case, agreeing that the applicant had failed to prove that she possessed the necessary management experience for eligibility in the investor class. While the applicant claimed that she supervised employees and production in her husband’s business, at her interview she acknowledged she had no responsibility in managing the company’s finances, no contact with clients or suppliers, and no independent decision-making authority in organizing production or hiring employees. Further, she confirmed that other individuals were in charge of managing staff and production procedures.
The Court moreover held that the applicant had been given ample opportunity over the course of her interview to describe her management experience. In the circumstances, “there was no additional obligation for the officer to clarify the application, reach out and make the applicant’s case, apprise the applicant of her concerns relating to whether the requirements set out in the legislation have been met, or to provide the applicant with a ‘running-score’ at every step of the application process”.

For further information on the Federal Court’s ruling in this case (Baloul v. Canada (Minister of Citizenship and Immigration), 2011 FC 1151) or on the requirements and process in applying for permanent residency in the investor category, please contact the immigration law specialists at Green and Spiegel LLP.

Please note that Citizenship and Immigration Canada’s annual cap of 700 applications in the investor category was reached shortly after it was introduced on July 1, 2011.