Date: 20021107
Docket: IMM-5656-00
Neutral citation: 2002 FCT 1152
BETWEEN:
DEMING ZHENG,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
LAYDEN-STEVENSON J.
[1] The applicant applied for permanent residence in Canada as a self-employed chef. By decision dated October 17, 2000, a visa officer refused the application. The applicant seeks judicial review of that decision.
[2] The applicant, Mr. Zheng, is a citizen of the People's Republic of China where his wife and three children reside. He has lived in the United States since November, 1991 and has been employed as a head chef at the Peking Garden Chinese Restaurant in Hattiesburg, Mississippi since December, 1991.
[3] The visa officer assessed the applicant in accordance with the relevant factors found in Schedule I of the Immigration Regulations, 1978, SOR/78-172 (the Regulations) and awarded him 47 units of assessment rather than the minimum 70 units required to qualify for immigration. He was not awarded the 30 bonus units for self-employed applicants because the visa officer was not satisfied that he would be able to become successfully established in his proposed business in Canada.
[4] The respondent, as a preliminary matter, takes exception to the fact that the applicant failed to file an affidavit in support of his application. Relying on Moldeveanu v. Canada (Minister of Citizenship and Immigration) (1999), 235 N.R. 192 (F.C.A.) and Khera v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1701 (T.D.), the respondent submits that an application not supported by a proper affidavit cannot proceed and it is appropriate that the Court dismiss the application. Alternatively, the respondent contends that the affidavit of the assistant to the applicant's counsel, filed in support of the application, should not be given any weight. Additionally, submits the respondent, much of the affidavit contains evidence and exhibits that were not before the visa officer when she made her decision and, as such, cannot be considered on an application for judicial review: Lemeicha v. Canada (Minister of Employment and Immigration) (1993), 72 F.T.R. 49.
[5] A person who files an application for judicial review does not himself or herself have to file an affidavit: Nelson v. Commissioner of Corrections (Canada) (1996), 206 N.R. 180 (F.C.A.). An affidavit filed in support of the application shall be confined to facts within the personal knowledge of the deponent: Federal Court Rules 1998, Rule 81(1). This reflects the general rule against hearsay but does not displace longstanding common law exceptions to the hearsay rule, nor the reliability and necessity exception of more recent vintage. To admit hearsay, evidence or argument relative to necessity and reliability is required: Canadian Tire Corp. v. P.S. Partsource Inc. (2001), 267 N.R. 135 (F.C.A.). Where hearsay evidence does not pass the necessity and reliability test set out by the Supreme Court of Canada, the error said to vitiate the decision must appear on the face of the record: Moldeveanu, supra. An application will not be dismissed for want of a proper affidavit where the affidavit is sufficient to establish the fact of the application and its rejection: Turcinovica v. Canada (Minister of Citizenship and Immigration) 2002 FCT 164, [2002] F.C.J. No. 216.
[6] Here, only six of forty-seven paragraphs of the affidavit relate to the applicant, Mr. Zheng. The six that do relate to him contain hearsay. Insofar as the affidavit is sworn in support of allegations of error, other than bias, the offensive portions of the affidavit will not be considered. The situation regarding the argument of reasonable apprehension of bias is different. New evidence, not before the decision maker, may be considered to support an allegation of bias: Rex v. Nat Bell Liquors Limited, [1922] 2 A.C. 128 (P.C.). That is not to say, however, that such evidence will not be subject to the relevant rules of evidence. I do not propose, in these reasons, to refer to each of the paragraphs of the affidavit filed with this application. I will say that those paragraphs delineating the plight of other applicants are irrelevant to these proceedings and have not been considered. Similarly, evidence not within the personal knowledge of the deponent that does not pass the necessity and reliability test has not been considered.
[7] The applicant submits three grounds for judicial review. First, he argues that the decision was made "sans rationale". This position is based on the "entitlement to reasons" that, the applicant contends, includes a right to the rationale giving rise to the negative decision. He acknowledges that the refusal letter and Computer Assisted Immigration Processing System (CAIPS) notes constitute reasons but maintains that they are "sans rationale" and thus, not reasons, "per se". He argues that the visa officer failed to consider his nine years of cooking experience in the United States and the fact that his assets exceed the necessary capital to open and operate an establishment.
[8] The applicant is correct that business ability, assets and business experience are relevant factors in the assessment of an applicant's ability to establish a business in Canada and that failure to consider relevant factors can result in the decision being set aside: Cheng v. Canada (Minister of Citizenship and Immigration) (2001), 13 Imm. L.R. (3d) 28 (F.C.T.D.). However, the CAIPS entries, here, do include reference to the applicant's employment as well as his monthly income. Additionally, there are entries recording the applicant's certificates of deposits, bank statements, a claim of a U.S. currency account in China as well as the purchase of a house and the fact that the applicant sent $30,000 to his wife. Finally, there is an entry that the applicant had investments of "$80,000 and properties". The employment and assets were referred to by the visa officer and the applicant's argument in this respect cannot succeed.
[9] Secondly, the applicant submits that the visa officer erred in refusing to consider applying positive discretion pursuant to subsection 11(3) of the Regulations in view of the applicant's assets and the fact that he had been supporting himself for nine years in the United States as a chef.
[10] I considered a similar argument in Zheng v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1115, [2002] F.C.J. No. 1478 and at paragraphs 25 - 28, summarized the law, as I understand it, regarding this issue. Here, the applicant obtained 47 units of assessment. This total is well below the normally required number of units. Moreover, the record does not disclose facts, evident on the face of the application, that reveal unusual circumstances such that the reasoning in Savvateev v. Canada (Minister of Citizenship and Immigration) (1999) 170 F.T.R. 317 or Norambuena v. Canada (Minister of Citizenship and Immigration) (2002) 21 Imm. L.R. (3d) 55 (F.C.T.D.) would apply. Thus, the applicant cannot succeed on this ground.
[11] The final ground advanced is that there exists a reasonable apprehension of bias. The applicant alleges that the visa officer was biased because Mr. Zheng is a Chinese chef working in the United States and because he retained Mr. Leahey.
[12] The test for bias is set out in Committee for Justice and Liberty et al. v. (Canada) National Energy Board, et al., [1978] 1 S.C.R. 369">[1978] 1 S.C.R. 369 at page 386:
. . . [T]he apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information . . . that test is 'what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that _[the decision maker] whether consciously or unconsciously, would not decide fairly.'
[13] In the absence of any evidence to the contrary, it must be presumed that a decision maker will act impartially: Zündel v. Citron, [2000] 4 F.C. 225 (C.A.), leave to appeal refused (1998), 228 N.R. 194 n. (S.C.C.).
[14] The admissible portions of the paragraphs of the affidavit in support of the application do not provide an evidentiary basis for this allegation. I am unable to find any basis in the record to support it. The record and specifically the CAIPS notes indicate that the visa officer referred to relevant factors and did not refer to irrelevant ones. The officer noted her concerns with the applicant. In the end, she determined that he did not qualify for immigration to Canada. There is nothing before me to suggest that she did not assess the application in good faith and on the basis of the evidence provided by the applicant. This argument is without merit.
[15] For the reasons given, the application for judicial review is dismissed. The applicant has not been successful. He is not entitled to the requested costs.
[16] Counsel for the respondent suggested a question for certification if the Minister was not successful. That is not the case. However, I had reservations, which I expressed to counsel, with respect to the proposed question since I did not view it to be a serious question of general importance. This case does not raise a serious question of general importance and no question is certified.
___________________________________
Judge
Ottawa, Ontario
November 7, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5656-00
STYLE OF CAUSE:DEMING ZHENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, OCTOBER 31, 2002
REASONS FOR ORDER
BY: LAYDEN-STEVENSON J.
DATED: THURSDAY, NOVEMBER 7, 2002
APPEARANCES BY: Mr. Timothy Leahy
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: Mr. Timothy Leahy
Barrister and Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
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