Date: 20010206
Docket: IMM-2466-00
Citation: 2001 FCT 28
BETWEEN:
ZHOUKUN NI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review of a visa officer's decision refusing the applicant a visa for permanent residence. The decision was dated April 7, 2000.
[2] Mr. Ni (the "applicant") is a citizen of the People's Republic of China, where his wife and son reside. He, however, has been residing without durable immigration status in the United States, where, since January, 1991, he has been employed in his intended occupation, chef, in Virginia, New York, Connecticut and Massachusetts. Although he did not speak English initially, he now speaks enough English to interact with customers who tell him what they want him to cook for them on an open grill.
[3] The applicant's application for permanent residence in Canada was received by the respondent in Buffalo on October 2, 1998. The applicant's intended occupation was "self-employed chef".
[4] The applicant attended "Cook Main School" for five years and worked as a cook in a guest house in China for five years. Essentially, the applicant has also worked as a cook in the United States since about January, 1991.
[5] The applicant plans to start a small Mongolian BBQ restaurant in Canada with the assistance of his brother-in-law who is already in Canada.
[6] The visa officer did not assess the applicant pursuant to paragraph 8(1)(b) of the Immigration Regulations, 1978, S.O.R./78-172 (the "Regulations") but assessed him in the independent category of Chef.
[7] The following issues were raised:
| 1. The visa officer breached the rules of procedural fairness by withholding her refusal for ten months from the date of interview, thereby depriving the applicant of the opportunity to present his case effectively; |
| 2. The visa officer erred by assessing the applicant under subsection 2(1) of the Regulations rather than under section 8 of the Regulations; |
| 3. The visa officer erred in failing to assess the applicant under subsection 11(3) of the Regulations; |
| 4. The visa officer erred by requiring of the applicant, skills far in excess of those required to operate successfully his proposed business venture; |
| 5. The visa officer's finding of no significant contribution was improper; and |
| 6. "Special reasons" merit assessing legal fees against the Minister. |
Applicable Law
[1] The following sections of the Regulations are relevant:
| "self-employed person" means an immigrant who intends and has the ability to establish or purchase a business in Canada that will create an employment opportunity for himself and will make a significant contribution to the economy or the cultural or artistic life of Canada;
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« travailleur autonome » s'entend d'un immigrant qui a l'intention et qui est en mesure d'établir ou d'acheter une entreprise au Canada, de façon à créer un emploi pour lui-même et à contribuer de manière significative à la vie économique, culturelle ou artistique du Canada.
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| 8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, 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
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I;
(b) in the case of an immigrant who intends to be a self-employed person in Canada, on the basis of each of the factors listed in Column I of Schedule I, other than the factor set out in item 5 thereof;
(c) in the case of an entrepreneur, an investor 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.
(d) [Repealed, SOR/85-1038, s. 3]
(e) [Repealed, SOR/91-433, s. 3]
(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in Column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in Column II thereof opposite that factor, but he shall not award for any factor more units of assessment than the maximum number set out in Column III thereof opposite that factor.
(3) [Repealed, SOR/85-1038, s. 3]
(4) Where a visa officer assesses an immigrant who intends to be a self-employed person in Canada, he shall, in addition to any other units of assessment awarded to that immigrant, award 30 units of assessment to the immigrant if, in the opinion of the visa officer, the immigrant will be able to become successfully established in his occupation or business in Canada.
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| 8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint:
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
b) dans le cas d'un immigrant qui compte devenir un travailleur autonome au Canada, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, autre que le facteur visé à l'article 5 de cette annexe;
c) dans le cas d'un entrepreneur, d'un investisseur ou d'un candidat d'une province, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, sauf ceux visés aux articles 4 et 5 de cette annexe;
d) [Abrogé, DORS/85-1038, art. 3]
e) [Abrogé, DORS/91-433, art. 3]
(2) Un agent des visas doit donner à l'immigrant qui est apprécié suivant les facteurs énumérés dans la colonne I de l'annexe I le nombre voulu de points d'appréciation pour chaque facteur, en s'en tenant au maximum fixé à la colonne III, conformément aux critères visés dans la colonne II de cette annexe vis-à-vis de ce facteur.
(3) [Abrogé, DORS/85-1038, art. 3]
(4) Lorsqu'un agent des visas apprécie un immigrant qui compte devenir un travailleur autonome au Canada, il doit, outre tout autre point d'appréciation accordé à l'immigrant, lui attribuer 30 points supplémentaires s'il est d'avis que l'immigrant sera en mesure d'exercer sa profession ou d'exploiter son entreprise avec succès au Canada.
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| 9. (1) Subject to subsection (1.01) and section 11, 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 issue an immigrant visa to him and his accompanying dependants if
(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;
(b) where the immigrant and the immigrant's accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8,
(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment,
(ii) in the case of an entrepreneur or a provincial nominee, he is awarded at least 25 units of assessment, and
(iii) in the case of an investor other than an investor in a province, the investor has made an investment and is awarded at least 25 units of assessment; and
(iv) [Repealed, SOR/99-146, s. 4]
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| 9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si:
a) l'immigrant et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement; et
b) lorsqu'ils entendent résider au Canada ailleurs qu'au Québec, suivant son appréciation de l'immigrant ou du conjoint de celui-ci selon l'article 8:
(i) dans le cas d'un immigrant, autre qu'un entrepreneur, un investisseur, ou un candidat d'une province, il obtient au moins 70 points d'appréciation,
(ii) dans le cas d'un entrepreneur ou d'un candidat d'une province, il obtient au moins 25 points d'appréciation,
(iii) dans le cas d'un investisseur autre qu'un investisseur d'une province, il a fait un placement et il obtient au moins 25 points d'appréciation;
(iv) [Abrogé, DORS/99-146, art. 4]
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| 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,
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11(3) L'agent des visas peut
a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,
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| The visa officer breached the rules of procedural fairness by withholding her refusal for ten months from the date of interview, thereby depriving the applicant of the opportunity to present his case effectively. |
| The applicant has argued that a breach of procedural fairness occurred because the respondent took ten months to consider and refuse the applicant's application for permanent residence. The respondent argues to the contrary and states that there is no evidence that the applicant inquired as to the status of his application in the ten month period and that there is no prejudice to the applicant. I find that although ten months is a fairly long period of time, I am not satisfied that a breach of procedural fairness occurred in this case. |
| The visa officer erred by assessing the applicant under subsection 2(1) of the Regulations rather than under section 8 of the Regulations. |
| A review of the CAIPS Notes and the visa officer's decision clearly show that the visa officer's assessment of the applicant centres on whether the applicant met the definition of "self-employed person" contained in section 2 of the Regulations. The decision reads in part as follows: |
| With regard to your business plans you stated that you want to start a small Mongolian BBQ restaurant in Canada where you hope to be able to make a living and pay Canadian taxes. When I asked you about the definition of a self-employed applicant, you stated that you think it means transferring your funds to Canada, setting up a restaurant or a business with your brother-in-law and that you have the ability to have a business and to work as a cook. |
| As is evident from the above there are no cultural or artistic considerations to your application. 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 no business education or training nor any business experience except for the six months you helped your wife buy and sell animal feeds in China. You have never visited Canada. Despite having been in the U.S. since 1990 your English skills are very limited. You stated that your economic contribution would consist in your paying your taxes, supporting yourself, having one employee and providing a service by serving food. You stated you would spend US $50,000 to start your business of which US $15,000 would go to set up a kitchen. You would have one employee at wages of Cdn $1500-1800/month. Your business would be a take-out place in a mall where there would be a common sitting area. You were not able to give me any information about taxation and necessary licences in B.C. where you want to establish your business. You stated you thought you would be able to run a restaurant because you have worked in restaurants for a long time. |
| You have not demonstrated that you have the financial and fiscal skills to establish and manage a business nor that the business as described would contribute significantly to the economy. |
| [4] In the above narrative, the visa officer included the following factors when determining that the applicant did not meet the definition of "self-employed person": |
1. You have never visited Canada.
2. You were not able to give me any information about taxation and necessary licences in B.C. where you want to establish your business.
[1] I do not believe that these are relevant factors to consider when determining whether an applicant "has the ability to establish a business in Canada". The applicant had a brother-in-law in British Columbia who was going to assist him with his business. As well, the applicant could hire a lawyer and an accountant to give him information about taxation and necessary licences. Since the failure to meet the requirements of the definition of "self-employed person" is an essential element to the success of the applicant's application, care must be taken to consider only the relevant considerations. Even though there were other relevant factors considered by the visa officer, I cannot determine how much the irrelevant factors influenced the visa officer's decision on the applicant's ability to establish a restaurant business in Canada.
[2] As Hugessen J. of this Court stated in B'Ghiel v. Canada (Minister of Citizenship and Immigration) (1999), 45 Imm. L.R. (2d) 198 (F.C.T.D.) at page 200:
. . .[T]he decision cannot stand. . . . [T] there are a number of other considerations which were properly taken into account. It is, of course, quite impossible for me to know what weight the Immigration Officer gave to each of those factors and indeed what weight was attached to the factors which were improperly considered. It may be, given the rather fluid nature of the assessment of personal suitability, that even if the improperly considered factors had been excluded the ultimate score would not have been very different. Since it is impossible to tell, the only solution is to send the matter back for reassessment and . . . such reassessment should be of the entire application not merely of the item "Personal Suitability". . . .
As the visa officer did not separate her reasons for stating that the "business as described would contribute significantly to the economy" she may have also applied these irrelevant reasons in that determination. I therefore find that the visa officer's decision that the applicant did not meet the definition of "self-employed person" cannot stand and must be set aside.
[3] There is a second aspect to this issue namely, must the visa officer assess the applicant under both Regulation 8(1)(b), 8(2) and 8(4) as well as under the definition of "self-employed person" contained in section 2 of the Regulations? I need not decide this issue because of the finding I have made but it would appear that the applicant must satisfy the definition of "self-employed person" contained in the Regulations in order to become a permanent resident of Canada. The order in which these assessments (section 2 and section 8 of the Regulations) is to be carried out need not be decided in this case but the words of Madam Justice Tremblay-Lamer in Cao and Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1077, IMM-6636-98 (July 4, 2000) (F.C.T.D.) at pages 10 and 11, paragraphs 30 to 32 should be noted:
On a last note, nevertheless, I believe it worthwhile to address an argument raised by counsel for the Applicant. He argues that undue emphasis placed on the regulatory definition of self-employed person may lead to disqualifying potential immigrations who satisfy the criteria specified in Column I of Schedule 1 of the Regulations.
Although this argument is not pertinent to the case at bar, insofar as the Applicant was attributed 54 points, 16 units short of the required 70, I agree with counsel for the Applicant that undue emphasis on meeting the regulatory definition will bar applicants who are awarded sufficient units of assessment pursuant to paragraph 9(1)(b). In fact, this has been highlighted by Madame Justice Reed in Zhao v. Canada (M.C.I.) Who stated as follows:
| I note as well, a very interesting editor's comment, found together with the decision in Du v. Canada (Minister of Citizenship & Immigration) (1998), in 33 Imm. L.R. (2d) 102 (F.C.T.D.). The editor argues that undue emphasis is being place [sic] in the jurisprudence on the definition of a "self-employed person" that is found in subsection 2(1) of the Regulations. The editor notes that visa officers are directed, when assessing self-employed applications, to assess the application in accordance with Regulations 8(1)(b) and 8(4). |
I am well aware that the guidelines provided by the Immigration Manual Overseas Processing, direct visa officer's to first assess an applicant under the regulatory definition of self-employed, and then according to the factors set out in Schedule 1 pursuant to paragraph 8(1)(b), however, I raise this issue due to my concern that this procedure makes it very difficult for an applicant to succeed under the self-employed category. It should be recalled that the Immigration Act's purpose is to permit immigration to Canada, not prevent it.
[4] Issue 3
The visa officer erred in failing to assess the applicant under subsection 11(3) of the Regulations.
The applicant did not request to be assessed pursuant to subsection 11(3) of the Regulations. I am of the opinion that there is no requirement for the visa officer to exercise her discretion under this section if she is not requested to do so (see Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316 (F.C.T.D.)). The visa officer, of course, of her own accord may decide to do this assessment.
[5] Issues 4 and 5
The visa officer erred by requiring of the applicant, skills far in excess of those required to operate successfully his proposed business venture.
| The visa officer's finding of no significant contribution was improper. |
These issues were answered by my decision on Issue 2.
[6] Issue 6
"Special reasons" merit assessing legal fees against the Minister.
I have considered all the circumstances of this case and I do not find that the circumstances or special reasons exist to justify assessing legal fees against the Minister.
[7] The applicant requested that I refer the matter back to the same visa officer should I decide to grant the application for judicial review. I have considered this request but I am not prepared to grant the request, but this does not bar the parties from agreeing to refer the matter back to the same visa officer.
[8] The application for judicial review is therefore allowed and the matter is referred back for consideration by a visa officer.
[9] Counsel for the parties will be provided with an opportunity to make a request for certification of a serious question of general importance. Counsel for the applicant shall file written representations, if any, on or before February 13, 2001, concerning the certification of a serious question of general importance. Counsel for the respondent shall file a written response, if any, on or before February 20, 2001.
J.F.C.C.
Ottawa, Ontario
February 6, 2001
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