Date: 20010202
Docket: IMM-2625-99
Citation: 2001 FCT 8
BETWEEN:
SHENGFANG LIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
Introduction
[1] This is an application for judicial review of the April 9, 1999 decision of an immigration officer, denying the applicant Shengfang Lin permanent residence in Canada under the self-employed category as a chef. At the start of the hearing, the applicant withdrew the application for judicial review in Court file: IMM-34-99.
Background
[2] Since leaving China in 1989, where his wife and two children remain, the applicant has worked as a Chinese chef in the Washington area of the United States. He was formally trained as a chef in the People's Republic of China, and has worked in that capacity both there, and in the United States since his arrival in 1990. The applicant's statement of facts indicates he entered the United States from Mexico, without a visa, was detained, then released on bail, but his application form shows he has answered "no" to the question about whether or not he has been detained or incarcerated.
[3] He is currently earning $650.US per week as the head chef of the "Top's China" restaurant in Arlington, Virginia. In his letter of application dated September 3, 1998, his agent states the applicant has $55,700.US on account, and he owns a home in China worth 250,000.¥ approximately $45,000.Cdn giving him, again approximately, $130,000.Cdn in assets. The applicant's counsel states that between the time of his application and his interview, his assets had increased by another $9,000.US
[4] The immigration officer's CAIPS notes from the interview indicate:
| He eventually wants to open his own fast food Chinese restaurant in a shopping centre. His friend in Vancouver has scouted a location for him on "U" street, he doesn't know where. However, he also has a job offer ... he is not sure that he would take it. At the beginning of the interview PI was adamant that he wanted to work as a cook for someone else in Canada to start with, as if he were to open his own business without any knowledge of business in Canada it would surely lose money. He then changed his mind and stated that he would have a look at the location his friend has found... (Tribunal Record at page 5) |
[5] The immigration officer's interview notes go on to state:
| Informed PI that given his very poor English (after nine years in the US at that), his never having been to Canada, never having run a business and wanting to settle in Vancouver with not a lot of funds he has not demonstrated that he would have the ability to make a significant contribution to Canada's economy... (Tribunal Record at page 5) |
[6] The immigration officer informed the applicant she would have to refuse his application on those grounds. Her CAIPS notes state:
| He then stated that he had actually run a business but had forgotten to mention it on his application. He produced a business licence...in his name in Bluefield, West Virginia, valid from July 1, 1997 through June 30, 1998. He said he had owned and run that business for about a year but had to sell it because he could not [sic] anyone to work for him and it was too much work on his own. He then changed his statement and said he had three employees but the work was so demanding that he got very tired and the profit he made was only the equivalent of what he made in salary as working as an employee. He brought no documents concerning the business and stated he doesn't know where they are. Given that he has already tried to have his own restaurant in the U.S. and had to give it up I asked him why he thought it would be different in Canada. Because his family would be there, he stated. Unfortunately that is not a convincing enough reason to believe that he would be able to meet the SE definition in Canada... |
Decision
[7] By letter dated April 9, 1999, the immigration officer advised the applicant he did not qualify for immigration to Canada in the self-employed category:
| In my opinion you do not meet the definition of "self-employed person. (Tribunal Record at page 7) |
[8] The immigration officer's refusal letter recounts the facts outlined above, then states:
| As is evident from the above, there are no cultural or artistic considerations to your application as a self-employed person. You have also not demonstrated that you have the ability to establish or purchase a business in Canada that will make a significant contribution to the economy. You have never visited Canada and your English abilities are very limited. You stated at your interview that you would need approximately US$60,000 to start your business in Canada and indicated your that your assets are US$56,000. You have no business education or training nor any proven successful business experience. Although you had originally indicated that you had never owned or run a business, you stated, after I had expressed my concerns about your lack of experience, that you had actually had your own restaurant... |
Discussion
[9] The applicant argues the immigration officer focussed solely on the regulatory definition of "self-employed" and whether he would attain sufficient units of assessment under Schedule I of the Regulations, and failed to consider whether he and his family were likely to be "self-supporting" in Canada. The applicant asserts that the assessment should be made "through subsection 8(1) of the Regulations" to determine whether the applicant "will be able to become successfully established". "Successfully established" equates to economic establishment, so where an applicant can demonstrate that he will be self-supporting in Canada, his application should be approved.
[10] I do not accept this argument. As stated by Tremblay-Lamer J. in Cao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1077 at paragraph 21:
| Pursuant to the Immigration Regulations, applications under the self-employed category involve a two-stage analysis. Applicants are assessed in accordance with paragraph 8(1)(b) and subsection 8(4) of the Regulations and must also satisfy the regulatory definition provided at subsection 2(1). |
[11] The applicant's argument ignores the regulatory definition of "self-employed" person and that the applicant's ability "to establish or purchase a business in Canada that will create an employment opportunity for himself" is central to the determination.
[12] The applicant also submits the immigration officer based her decision on erroneous findings of fact. First, he takes issue with the immigration officer's finding that his projection of a 20% profit margin for his proposed business "sounds a bit high". Given the absence of a business plan or concrete projections of profit or loss and the onus on the applicant, I am unable to conclude that this constitutes reviewable error.
[13] Second, the applicant submits the immigration officer took into account only his cash-on-hand and neglected to consider the value of his home in China when arriving at the value of his assets. The applicant is correct in this respect, however, financial ability is but one of the considerations in the determination of whether the applicant meets the definition of "self-employed". Having regard to the factors considered by the immigration officer and the decision in its entirety, in my view, the decision should not be disturbed for this reason alone.
[14] A further argument advanced by the applicant concerns whether his proposed business will make a "significant contribution to the economy, or the cultural or artistic life of Canada". In my view, the immigration officer having found the applicant had failed to demonstrate his ability to establish or purchase a business, she was not required to consider whether such a business would make a significant contribution as required in the definition.
[15] Lastly, the applicant submits the immigration officer erred in failing to consider the exercise of her discretion under subsection 11(3) of the Regulations. In Lam v. Canada (Minister of Citizenship and Immigration, [1998] F.C.J. No 1239 at paragraph 5, Rothstein J. commented:
| Where an applicant has reason to believe that he or she may be successfully established in Canada, irrespective of the units of assessment determination, he or she should apply for a determination under subsection 11(3) setting forth relevant reasons...there is no obligation on the visa officer to exercise a discretion under subsection 11(3). |
[16] The applicant's counsel directed the Court's attention to his letter to the Canadian Consulate General, dated September 3, 1998, which he submits includes such a request. I have reviewed the contents of this letter carefully and conclude that neither expressly nor by inference is there a request for consideration pursuant to subsection 11(3) of the Regulations.
[17] For these reasons, the application for judicial review is dismissed.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
February 2, 2001
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