Date: 20030327
Docket: IMM-3000-01
Neutral citation: 2003 FCT 359
BETWEEN:
ZHONGYAO YANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of a visa officer at the Canadian Consulate General in New York, U.S.A., dated May 29, 2001, wherein the visa officer refused the applicant's application for permanent residence. The visa officer determined that the applicant was not an entrepreneur as defined in the Immigration Regulations, 1978, S.O.R./78-172 as amended ("Immigration Regulations").
[2] The applicant makes an application for:
1. An order in the nature of certiorari setting aside the visa officer's refusal to allow the applicant to immigrate;
2. An order in the nature of mandamus; or in the alternative, a direction, requiring the respondent to either approve the applicant's immigrant visa or to bear all reasonable expenses another interview would oblige him to incur;
3. An order in the nature of mandamus; or in the alternative, a direction, requiring the respondent, if the applicant is to be re-interviewed, either to record the interview or to permit his counsel to attend with him;
4. An order in the nature of a declaration finding that assessing officers must give "full faith and credit" to those, such as the applicant who:
(i) have secured employment in their "intended occupation" outside their
patriae;
(ii) whose earnings at least equal the sponsorship income-guidelines for a family of their size; and
(iii) who have accumulated the requisite amount of assets for a family of their size; (i.e., the respondent is to recognize that they "are likely (also) to become successfully established in Canada");
5. An order in the nature of mandamus compelling an officer to conduct a bona fide R11(3) review or to issue the applicant an immigrant visa;
6. Any favourable orders the Court considers appropriate; and
7. Legal fees in the amount of $6,600 plus examination costs.
Background
[3] The applicant is a citizen of China. On November 19, 1999, the applicant submitted an application for permanent residence in the self-employed category, listing his wife and two children, who live in China, as dependents. The applicant intended to open a fast-food Chinese restaurant in a food court.
[4] The applicant attended a personal interview at the Canadian Consulate General in New York on May 24, 2001. An interpreter was present at that interview.
[5] The decision of the visa officer was communicated to the applicant by letter dated May 29, 2001. The visa officer assessed the applicant as a restaurant owner in the entrepreneur category.
[6] In her decision, the visa officer wrote:
. . .
I have now completed the assessment of your application and have determined that you do not qualify for immigration to Canada as an entrepreneur. You stated at the interview that you would be hiring people and that you were not going to be working on your own. You confirmed that you only wanted to be assessed as an entrepreneur.
. . .
You do not meet the definition of an entrepreneur. As I discussed with you at the interview, I am not satisfied that you have the ability to purchase or establish a restaurant in Canada.
. . .
You do not meet the requirements of the Act and regulations, as stated above and your application is therefore refused.
Issues
[7] 1. Did the visa officer commit a reversible error in rejecting the applicant whom she found is likely to be self-supporting in Canada?
2. Did the visa officer improperly fetter herself?
3. Did the visa officer fail to assess the applicant fully and fairly?
4. Did the visa officer make a finding inconsistent with the facts before her?
5. Did the visa officer improperly reject the applicant's assets?
6. Is the applicant entitled to costs?
Applicant's Submissions
[8] The applicant submits that the visa officer acknowledged that the applicant is likely to be self-supporting in Canada and is therefore entitled to be approved for an immigrant visa. The applicant further submits that the visa officer improperly fettered herself by "pigeon-holing" the applicant into the entrepreneur sub-category and refusing to assess the applicant in the self-employed category as well.
[9] In addition, the applicant submits that the visa officer failed to elicit the information required to reach her conclusions. In particular, it is submitted that the visa officer failed to ask the applicant questions regarding his actual job duties, the reason for his inability to remember the names of his co-workers and his ability as a chef. The applicant also submits that the visa officer made erroneous findings of fact regarding the estimated food costs and income generated by a restaurant business.
[10] The applicant submits that the visa officer breached the duty of fairness when she dismissed all of his assets because she was not satisfied that the money in his bank accounts was actually his to dispose of. It is also submitted that the visa officer erred by failing to ascertain whether the applicant had sufficient funds to open and operate a Chinese restaurant in Ontario.
[11] Finally, the applicant submits that he should be awarded costs because otherwise, this litigation would be free for the respondent. In addition, it is submitted that the visa officer should reimburse applicants for "having failed to manifest the minimum level of expertise she had publicly declared would be provided."
Respondent's Submissions
[12] The respondent submits that since the applicant was applying for an entrepreneur visa, the applicant must meet the definition of "entrepreneur" as set out in the Immigration Regulations, supra. It is submitted that the visa officer's determination that the applicant did not meet the definition of entrepreneur was reasonable and supported by the evidence. Furthermore, it is submitted that the visa officer's assessment of the applicant was not unreasonable, based on irrelevant considerations, or made in an arbitrary or capricious manner. As a result, the respondent submits that the visa officer did not commit a reviewable error and that this Court cannot intervene.
Relevant Statutory Provisions and Regulations
[13] Subsection 6.(1) of the Immigration Act, R.S.C. 1985, c. I-2 states:
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6. (1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependants, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations.
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6. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, tout immigrant, notamment tout réfugié au sens de la Convention, ainsi que toutes les personnes à sa charge peuvent obtenir le droit d'établissement si l'agent d'immigration est convaincu que l'immigrant satisfait aux normes réglementaires de sélection visant à déterminer s'il pourra ou non réussir son installation au Canada, au sens des règlements, et si oui, dans quelle mesure.
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[14] The relevant sections of the Immigration Regulations, supra state:
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2.(1) "entrepreneur" means an immigrant
(a) who intends and has the ability to establish, purchase or make a substantial investment in a business or commercial venture in Canada that will make a significant contribution to the economy and whereby employment opportunities will be created or continued in Canada for one or more Canadian citizens or permanent residents, other than the entrepreneur and his dependants, and
(b) who intends and has the ability to provide active and on-going participation in the management of the business or commencial venture;
"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;
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
. . .
(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;
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2.(1) « entrepreneur » désigne un immigrant
a) qui a l'intention et qui est en mesure d'établir ou d'acheter au Canada une entreprise ou un commerce, ou d'y investir une somme importante, de façon à contribuer de manière significative à la vie économique et à permettre à au moins un citoyen canadien ou résident permanent, à part l'entrepreneur et les personnes à sa charge, d'obtenir ou de conserver un emploi, et
b) qui a l'intention et est en mesure de participer activement et régulièrement à la gestion de cette entreprise ou de ce commerce;
« 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.
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:
. . .
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;
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(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.
. . .
(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.
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,
if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
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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;
. . .
(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.
11.(3) (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,
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.
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Analysis and Decison
[15] Issue 1
Did the visa officer commit a reversible error in rejecting the applicant whom she found is likely to be self-supporting in Canada?
The applicant submits that the visa officer concluded that the applicant supported himself while living in the United States and that there would be no reason why he could not do the same in Canada. The applicant relied on the following excerpt from the cross-examination of the visa officer:
Q. Do you believe that he was working there [at the Empire Buffet]?
A. As I said earlier - well, no, I'm not totally sure that he worked there, but he was unable to convince me that he worked either as a supervisor or as a chef.
Q. Do you believe that he was supporting himself working not in illegal trade?
A. If I've understood your question correctly - and you'll be able to answer that - I assumed that the Applicant earned his living, since he was living in the States. If I've understood your question correctly.
Q. Yes, you've answered the question. Thank you. Is there any reason why you would think that he would not be able to do the same in Canada?
A. No, but this isn't the question. The question is whether he does or does not meet the definition of "entrepreneur".
The visa officer assessed the applicant as an entrepreneur. Even if I was to accept that the above testimony was sufficient to meet paragraph (a) of the definition of "entrepreneur", under subsection 2.(1) of the Immigration Regulations, supra, the applicant must still establish that he "intends and has the ability to provide active and on-going participation in the management of the business or commercial venture" under paragraph (b) of the definition. The visa officer recognized this in her answer when she stated that the applicant still has to meet the definition of entrepreneur. The visa officer thus made no reviewable error in this respect.
[16] Issue 2
Did the visa officer improperly fetter herself?
In the letter enclosing the applicant's application, it was stated that the applicant was applying for permanent residence as a self-employed chef (NOC 6241) or in the alternative, as an entrepreneur. The applicant submits that the visa officer committed a reversible error by not assessing the applicant as a chef. However, at the commencement of the interview, after an explanation from the visa officer, the applicant stated that he wished to be assessed only as an entrepreneur. The visa officer confirmed this during her cross-examination. Accordingly, the visa officer assessed the applicant only as an entrepreneur. I agree with the applicant that the visa officer must, if the applicant requests assessment in alternative occupations, that assessment should be made. But, based on the evidence before me, that is not the case. Based on this evidence, the visa officer did not make a reviewable error.
[17] Issue 3
Did the visa officer fail to assess the applicant fully and fairly?
The onus is on the applicant to establish that he satisfies the selection standards in the Immigration Regulations, supra. The applicant submits that the visa officer failed to elicit the information required to reach her conclusions. In particular, he claims that the visa officer failed to ask the applicant questions regarding his actual job duties, the reason for his inability to remember the names of his co-workers and his ability as a chef.
[18] The applicant's job duties
The applicant indicated that he wished to be assessed as an entrepreneur. As a result, the applicant must establish that he has the ability to provide active and on-going participation in the management of a restaurant. A review of the CAIPS notes indicates that the visa officer questioned the applicant about his management experience and education. The CAIPS notes read as follows at pages 76 and 77 of the tribunal record:
UNTIL HE ARRIVED IN USA THE APP CONFIRMS HE WORKED AS A CAR REPAIRER. ON IMM8 MENTIONS THAT HE STUDIED AFTER ARRIVING. SAYS THAT HE DID NOT SAY THAT HE WENT TO SCHOOL AFTER ARRIVING TO USA. I SHOW HIM THE IMM8 WHERE IT IS MENTION STUDY. SAYS THAT WHEN HE ARRIVED HE WORKED ON A PART TIME BASIS. SAYS HE NEVER STUDIED AND HE ALWAYS WORKED IN A RESTAURANT. WHEN DID YOU START TO WORK IN A RESTAURANT FOR THE 1ST TIME. SAYS HE STARTED TO WORK IN AUG92 AND WORKED 5 YRS FULL TIME. WHAT HAPPENED THEN? NOTHING REALLY HAPPENED THE OWNER OF THIS BUFFET REST HIRED ME BECAUSE I HAD MANAGEMENT EXPERIENCE. YOU HAD MANGMNT EXPERIENCE WHERE DID YOU GET THAT? I HAD WORK IN RESTAURANT FOR LONG TIME AND I WAS FAMILIAR WITH RESTAURANT OPERATION. THAT IS TO SAY WORKING IN THE KITCHEN AND PREPARING SAUCES.
TRAINING AS A COOK:
SAYS HE HAS NO FORMAL TRAINING AS A COOK. I LEARNED THE HARD WAY FROM THE MASTER, STEP BY STEP AFTER A FEW MTS I GAINED THE EXPERIENCE. EMP REQUIREMENTS FOR COOK IS A 3 YRS APPRENTICESHIP PROGRAM OR SEVERAL YRS OF COMMERCIAL COOKING EXPERIENCE.
TRAINING IN BUSINESS:
SAYS HE HAS NOT FORMAL MANAGMENT EDUCATION BUT I AM REALLY GOOD AT IT FROM WORKING IN A RESTAURANT.
[19] Names of employees
A review of the CAIPS notes shows that the visa officer asked the applicant to name the employees he supervised and she left the room so as to give him time to write down the names. The applicant could identify the jobs performed by the employees, but could only identify the names of four employees. The only reason given was that he had hired the employees from an agency. The CAIPS notes read as follows at page 78 of the tribunal record:
. . . REPEAT TO HIM THAT PEOPLE WITH MANAGEMENT ABILITY HAVE ABILITY MANAGING PEOPLE, ESPECILLY IN REST BUSINESS AND THEY KNOW THE NAME OF THEIR EMP. SAYS HE HIRED THOSE PEOPLE FROM AN AGENCY AND HE HAS MORE EXPERIENCE IN MANGMENT OF OPERATION . . .
[20] I am of the opinion that the visa officer did not make a reviewable error or fail to assess the applicant fully and fairly in this regard.
[21] Applicant's ability as a chef
The visa officer has stated that the applicant wished to be assessed only as an entrepreneur. The letter enclosing his application asked that he be assessed as a self-employed chef (NOC 6241) or in the alternative, as an entrepreneur. His application form stated his intended occupation was a self-employed restaurant owner. Since the applicant told the visa officer that he only wished to be assessed as an entrepreneur, it was not necessary for the visa officer to assess the applicant in any other occupation. The visa officer did not make an error in this respect.
[22] Issue 4
Did the visa officer make a finding inconsistent with the facts before her?
The applicant submits that the visa officer made erroneous findings of fact with respect to the estimated food costs and the income of the proposed business. I agree with the applicant that the visa officer did make an error in this respect. I am convinced, however, that this error was not central to the outcome of the case. A review of both the visa officer's decision and the CAIPS notes indicates that she based her decision on the ownership of the funds and her belief that the applicant lacked management experience. Her findings in regard to these two aspects would have prevented the applicant from succeeding in his application.
[23] Issue 5
Did the visa officer improperly reject the applicant's assets?
The visa officer was not satisfied that the funds in the applicant's bank accounts were his to dispose of. When an applicant applies to come to Canada as an entrepreneur, the applicant must establish that he or she has the ability to purchase or make a substantial investment in a restaurant in Canada. This Court has previously held in Ye v. Canada (Minister of Citizenship and Immigration), 2001 F.C.T. 912, F.C.J. No. 1292 (T.D.) that a visa officer may look at the ownership of the funds claimed by the applicant. Rothstein J.A. stated at paragraphs 4 to 5:
The applicant says he is not required to show the origin of his assets. However, the visa officer is not obliged to accept evidence that funds in excess of U.S. $70,000.00 are his where an applicant is earning less than U.S. $30,000.00 and has a number of deposits to his bank account over a two month period totalling over U.S. $50,000.00. The visa officer does not make an unreasonable decision in not accepting that the applicant is the beneficial owner of these funds and that they would be available for an investment in a restaurant business in Canada.
The applicant says the visa officer denied him the opportunity to show that he could transfer the funds in his U.S. bank account to Canada. However, even if the funds could be transferred to Canada, that does not prove that the applicant is the beneficial owner of the funds, which was the concern of the visa officer. I would not interfere with the visa officer's disallowance of the applicant's assets.
Although the Court was dealing with a "self-employed person" in that application, I would apply the Court's reasoning to an entrepreneur applicant.
[24] In the present case, the visa officer stated in the CAIPS notes at pages 77 to 78 of the tribunal record:
WHAT IS YOUR SALARY? USD 2200 PER MT. DO YOU PAY TAXES? MY BOSS FILL THE TAX FOR ME. DO YOU HAVE THE DOC WITH YOU? I DID NOT REPORT MY INDIVIDUAL INCOME TAX. IN YOU BK STAT CAN I SEE THE CHEQUE YOU RECEIVE FROM YOUR EMPLOYER? I AM ALWAYS PAID IN CASH. SAYS HE DEPOSITS THE MONEY ONCE A MT GENERALLY BECAUSE HE GETS PAID ONE A MT. IN LAST STAT THEY ARE 2 DEPOSITS: ONE OF 6000 AND ONE OF 3000. NO DEPOSITS OF 2200 OR LESS. SAYS A FRIEND OF HIS BORROWED THE MONEY FROM HIM BECAUSE HE PURCHASED A REST AND NEEDED MONEY FOR THE EQUIPMENT, NEEDED TO PAY IN CASH. SAYS HIS FRIEND GAVE HIM MONEY ORDER AND HE GAVE HIM CASH. I MADE SURE I UNDERSTOOD CORRECTLY SINCE IT DOES NOT MAKE MUCH SENSE TO ONLY BE ABLE TO PAY CASH FOR REST EQUIP, NOT EVEN WITH MONEY ORDER. WITHDRAWAL OF 5000 AND DEPOSITS OF 9000. NOT THE SAME AMOUNT. SAYS HIS PAY WAS ALSO INCLUDED IN THE DEPOSIT. HE SAYS THAT HE HAS SOME DEPOSIT SLIPS WITH HIM. HE HAS ABOUT 30 DEPOSIT SLIPS WITH HIM. ASKED HIM TO SHOW ME THE ONE FOR THE MONEY ORDER DEPOSITS. SAYS THAT HE TRIED TO LOOK FOR IT BUT COULD NOT FIND IT LAST NIGHT. HE DOES NOT HAVE REASON TO PROVIDE AS WHY HE LOOKED FOR THIS SPECIFIC DEPOSIT SLIP YESTERDAY NIGHT.
TOLD HIM I WOULD MAKE COPY OF HIS DOC AND THAT I WAS CONCERNED ABOUT SOURCE OF FUNDS.
BK STAT OF OCT99 SHOWS 33K.
BK STAT OF MAY2001 SHOWS 50K.
FOR BK STAT IN CHINA INCREASSE OF 15K.
TOTAL INCREASE IN 18 MTS OF 32K.
HIS ANNUAL SALARY IS LESS THAN 30K. DIFFICULT TO SAVE ALL THIS MONEY. SAYS HIS WIFE IS NOT WORKING, HOUSE WIFE BECAUSE SHE HAS TO LOOK AFTER CHILDREN,
TELL HIM ABOUT MY CONCERNS RELATING TO INCREASE IN FUNDS. SAYS THAT IT IS REALLY HIS MONEY AND HE REALLY DID NOT SEND MUCH TO HIS WIFE.
SAYS HE HAS A BIG HOUSE IN CHINA.
HE WAS A CAR REPAIRE. I TELL HIM I DON'T UNDERSTAND HOW HE COULD SAVE MONEY FOR THIS HOUSE.
SAYS HIS FATHER USED TO OWN A CONSTRUCTION CO. FATHER PASSED AWAY IN 89. (PEOPLE IN CONSTRUCTION BUSINESS USUALLY INVOLVE FAM MEMBERS). YOU NEVER WORKED WITH YOUR FATHER? SAYS HE WAS IN SCHOOL. COMPLETE SEC IN 84. (5 YRS BEFORE HIS FATHER PASSED AWAY).
SAYS AFTER SCHOOL HE WAS ON HIS OWN WORKING FOR A SHIPPING CO. (THIS WAS NOT MENTIONNED BEFORE WHEN CONFIRMING WORK EXPERIENCE, NOT ON IMM8 EITHER). I TELL HIM THAT BEFORE HE TOLD ME HE QUIT STUDIES TO HELP HIS FAMILY FINANCIALLY.
SAYS HE HAD TO WORK BECAUSE HIS FATHER WAS GETTING OLD. SAYS THAT HE LEARNED JUST RECENTLY THAT HIS FATHER LEFT HIM MONEY. RECENTLY= AFTER THE DEATH OF HIS FATHER.
EXPLANATION RE SOURCE OF FUNDS OR ASSETS IS NOT CREDIBLE.
I AM NO SAT THE APP HAS THE ABILITY TO MANAGE A BUSINESS. I AM CONCERNED THAT THE MONEY HE IS SHOWING IS NOT HIS.
In my opinion, it was open to the visa officer to come to the conclusion that the funds that the applicant claimed to have were not all his funds. The visa officer made no error in this respect.
[25] Issue 6
Is the applicant entitled to costs?
As the applicant has not succeeded in his application, no award of costs will be made to the applicant.
[26] For the above reasons, the application for judicial review is dismissed.
[27] The parties shall have one week from the date of this decision to submit a proposed serious question of general importance for my consideration and one further week for any reply.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
March 27, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3000-01
STYLE OF CAUSE: ZHONGYAO YANG
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Monday, October 28, 2002
REASONS FOR ORDER OF O'KEEFE J.
DATED: Thursday, March 27, 2003
APPEARANCES:
Timothy E. Leahy
FOR APPLICANT
Mary Matthews
FOR RESPONDENT
SOLICITORS OF RECORD:
Timothy E. Leahy
5075 Yonge Street
Suite 408
Toronto, Ontario
M2N 6C6
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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