[1] The applicant, a 38 year old citizen of Hong Kong, wants to establish and run a "... business which would cater to Chinese-speaking Canadians and which would provide health aide services to elderly people". She applied for permanent residence in Canada in the self-employed category under the former Immigration Act, R.S.C. 1985, c. I-2 (the Act) and the now defunct Immigration Regulations, 1978, SOR/78-172 (the Regulations). This application is for judicial review of both the decision of a visa officer dated November 29, 2000 denying the applicant's application and of the confirmation of that decision by the consul and deputy program manager (the manager) on December 12, 2000.
[2] The applicant seeks an order quashing the decisions of the visa officer and the manager, a declaratory order that the respondent has abused the process of the court, and costs on a solicitor- client basis. The applicant also requested an order directing the respondent to process the application for permanent residence within 90 days, but that request has been withdrawn and replaced with other requests that will be referred to later in these reasons.
BACKGROUND
[3] The applicant submitted her application for permanent residence to the Canadian Consulate General in New York in February, 1999. A visa officer refused the application on June 1, 1999. The visa officer's decision was quashed on judicial review and the matter was sent back for reconsideration. The applicant was interviewed by a different visa officer on November 14, 2000. At the end of the interview, the visa officer stated that she would be refusing the application. On November 28, 2000, by facsimile correspondence to the Consulate, the applicant's counsel requested a delay of the decision to enable the applicant to provide further information. The visa officer received that communication on December 1, 2000, two days after she had rendered a negative decision and issued a refusal letter with respect to the application. The visa officer forwarded counsel's correspondence and the file to the manager. The manager determined that an assessment of the application had been made on the merits, that a written decision had been provided, and that the matter was concluded. The manager forwarded a "no review" letter to the applicant's counsel indicating that the decision of the visa officer was final and that the applicant's file had been closed.
[4] The applicant filed an application for judicial review and later, by motion, sought leave to amend the requested relief. The motion was granted on May 15, 2003, and the applicant, if successful on her application for judicial review, now requests that the matter be redetermined as of the date of the refusal and on the basis of the law as it existed at the time of refusal. In relation to that request, the applicant seeks declarations: that section 190 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) contains a permissive as opposed to a mandatory direction; that section 350 of the IRPA Regulations is ultra vires the framework of section 190 of IRPA; that a mandatory interpretation of the term "shall" in section 190 of IRPA offends paragraph 2(1)(e) of the Canadian Bill of Rights in denying the applicant a fair hearing in accordance with the principles of natural justice or, alternatively, that there is a natural presumption against interpreting the word "shall" in a manner that would lead to retroactivity.
ISSUES
[5] The applicant delineates the issues as follows:
(1) Does the similarity between the visa officer's reasons and the reasons of the previous visa officer whose decision was quashed on judicial review,
(a) constitute contempt of court and/or abuse of process;
(b) fall within the doctrine of res judicata and/or issue estoppel;
(c) demonstrate wilful blindness to the court's decision which justifies an award of costs?
(2) Did the visa officer breach the duty of fairness,
(a) by failing to demonstrate in her reasons how her assessment differs from the assessment of the previous visa officer;
(b) by failing to raise her concerns with the applicant and allow the applicant an adequate opportunity to respond?
(3) Did the visa officer err in law,
(a) by placing undue emphasis on the lack of previous business experience in assessing the applicant's ability to establish a successful business in Canada;
(b) by considering, as part of the final assessment, whether the applicant's proposed business would "make a significant contribution to the economy or the cultural, or artistic life of Canada"?
THE RELEVANT STATUTORY PROVISIONS
| Immigration Regulations, 1978
2.(1) In these Regulations,
"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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Règlement sur l'immigration de1978
2.(1) Dans le présent règlement,
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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.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; ...
(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 : ...
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; ...
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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ANALYSIS
ISSUE (1): Does the similarity between the visa officer's reasons and the reasons of the previous visa officer whose decision was quashed on judicial review,
(a) constitute contempt of court and/or abuse of process;
(b) fall within the doctrine of res judicata and/or issue estoppel;
(c) demonstrate wilful blindness to the court's decision which justifies an award of costs?
[6] For the reasons that follow, I conclude that each of the above-noted questions should be answered in the negative.
[7] The applicant argues that the visa officer's negative decision is based essentially on the same reasons as the decision of the previous visa officer. The latter was quashed on judicial review. Specifically, the applicant submits that "... both refusals were concerned with the applicant's alleged lack of business ability" and "... in fact, the two refusal letters are virtually identical". This indicates, in the applicant's view, contempt of court and abuse of process in that the visa officer simply ignored the court's previous ruling. Additionally, the applicant argues that the doctrine of res judicata should apply to these facts and should operate to prevent the officer from taking issue with her lack of business ability when the court has already reviewed the issue. The applicant also says that the visa officer's actions demonstrate "... wilful blindness to the court's decision" thereby justifying an award of costs on a solicitor-client basis.
[8] Having carefully reviewed the decisions as well as the CAIPS notes of each of the visa officers, I do not find that the decisions are identical as suggested by the applicant. There are undoubtedly similarities between the decisions, but I agree with the respondent that, where an application is considered a second time, it is inevitable that some similarities will exist. There are two striking differences that, in my view, distinguish the two decisions. First, the earlier decision indicates that 5 units of assessment were awarded for the education factor. The first visa officer noted that, under the circumstances, it would have been impossible for the applicant to attain the minimum requirement of 70 units, even if the applicant had obtained the 30 bonus points. The second decision, on the other hand, indicates that 10 units of assessment were awarded for education. Thus, theoretically, it was possible for the applicant to obtain the required 70 units. More importantly, the second refusal was based wholly on the applicant's failure to meet the requirements for a self-employed person.
[9] The first visa officer, in determining that the applicant failed to meet the definition of a self-employed person, focussed on one factor - the ability to establish a successful business. In making that assessment, the visa officer gave weight to certain findings of fact referred to in the refusal letter, specifically that the applicant had no experience in running a profitable business or being engaged in commercial transactions. The record, in the present application, does not support a determination that the second visa officer made, or relied upon, identical findings. Although the second visa officer concluded that the applicant lacked the ability to establish and maintain a viable business in Canada, she also concluded that, assuming that this was not the case, such business would not "... make a significant contribution to the economy or to the cultural or artistic life of Canada". As a result, the applicant did not meet the definition of a self-employed person.
[10] Although the end result in each decision was the same, the tests applied and the factual findings, relied upon by the visa officers, were different. I am unable to conclude that there was an abuse of process or contempt of court. The record does not disclose any evidence of bad faith, malice, bias, or disregard for the court's order, by the visa officer. Rather, an examination of the record reveals that the visa officer did what the court ordered her to do - reconsider the application. Moreover, the officer deposes that she reviewed the order that quashed the first decision and took it into account when making her assessment.
[11] Regarding the doctrine of res judicata, as I indicated to counsel during the hearing, it is my view that the doctrine does not apply. Insofar as cause of action estoppel is concerned, the order quashing the first decision does not constitute a finding that the applicant had met the definition of a self-employed person or that her application should be approved. Rather, the judge concluded that there existed "... a reviewable error that might on reconsideration, together with reconsideration of other factors, result in an award of units of assessment sufficient to support a conclusion that the applicant meets the requirements for admission to Canada". The application was "... referred back to the respondent for reconsideration and redetermination by a different visa officer" (emphasis added). There was no final decision on the merits and there exists no basis for cause of action estoppel. Similarly, with respect to issue estoppel, which precludes relitigation of the same issues between the same parties, there was no determination with respect to any specific issue on the first judicial review. The order of the court did not hold that the applicant's lack of business experience was irrelevant, that the business plan was viable, or that the applicant had the ability to become successfully established in Canada as a self-employed person. The issue of potential contribution to the economy was not considered in the first visa officer's decision. Thus, these issues fell to be determined by the second visa officer in the reconsideration of the application.
[12] The factual circumstances in the authorities relied upon by the applicant are not akin to the facts that are before me. In Kaloti v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 289 (T.D.) aff'd. (2000), 285 N.R. 184 (F.C.A.), the applicant was attempting to relitigate an issue that the court had ruled on, that his spouse "entered into marriage primarily for the purpose of gaining admission into Canada". In Shaju v. Canada (Minister of Citizenship and Immigration) (1995), 97 F.T.R. 313 (T.D.), the applicant raised an issue regarding the lack of proper translation at a refugee hearing after the court, by denying leave on a previous application for judicial review, had ruled on the issue. In Raman v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 67 (T.D.), the applicant was seeking a stay of an exclusion order claiming potential irreparable harm after the same remedy had been denied when he failed to satisfy the court that such irreparable harm would likely occur.
[13] In Lau v. Canada (Minister of Citizenship and Immigration) (2000), 189 F.T.R. 53 (T.D.), the applicant was seeking judicial review of a visa officer's final decision after his application for judicial review of the "preliminary" decision of the same officer had been dismissed. The "inchoate" letter, from the officer, stated grounds for refusing the application for permanent residence and gave the applicant an opportunity to respond. The applicant sought judicial review of the officer's letter characterizing it as a "decision". The court dismissed the application. The applicant then responded to the officer's letter and submitted additional evidence. The officer, still not being satisfied, made a final decision refusing the application on the grounds previously stated. The court, applying the doctrine of res judicata, refused to conduct a second review of the same grounds. Any relevance flowing from Lau, supra, militates against the applicant's position. The "preliminary" letter by the officer was itself a response to a ruling of the court quashing a previous decision of a visa officer and ordering the officer to provide reasons and give the applicant an opportunity to respond. The applicant's res judicata arguments (in his application for judicial review of the visa officer's letter) that the officer had disregarded the court's decision by issuing the letter, were dismissed by the court.
[14] In short, the authorities relied upon by the applicant do not support her submission. All were cases where the parties were attempting to relitigate issues that had been determined by the court. That is not the situation here, and issue estoppel does not apply.
[15] The applicant's request for costs is founded on arguments relative to abuse of process and res judicata. Since I have not been persuaded by those arguments and since the record does not disclose outrageous or vexatious conduct on the part of the visa officer, an award of costs on a solicitor-client basis is not appropriate, even if the decision is found, on other grounds, to be unreasonable.
ISSUE (2): Did the visa officer breach the duty of fairness,
(a) by failing to demonstrate in her reasons how her assessment differs from the assessment of the previous visa officer;
(b) by failing to raise her concerns with the applicant and allow the applicant an adequate opportunity to respond?
[16] In my view, these questions should also be answered in the negative. The applicant argues that "... in light of the prior refusal", the visa officer was under "... a duty to explain to the applicant how her concerns differed from those of the previous visa officer, if they differed at all". The visa officer failed to provide that explanation "... in either the refusal letter, the CAIPS notes or her affidavit", and that failure, submits the applicant, constitutes a breach of procedural fairness. The visa officer's silence regarding the previous refusal, it is argued, raises "... an implication or an inference that had the visa officer tried to explain, her explanation would not have been credible". The applicant additionally submits that the visa officer failed in her duty to voice her specific concerns (regarding the viability of the applicant's proposed business and the lack of cultural or economic value of such business) and to allow the applicant an opportunity to respond. At the hearing, the applicant withdrew the argument regarding failure by the visa officer to exercise positive discretion under subsection 11(3) of the Regulations.
[17] As stated earlier, the second visa officer's reasons for refusing the applicant's application were not identical to those of the first visa officer. The applicant has not referred to any authority or statutory provision that requires a visa officer, when assessing an application that has been remitted back for reconsideration following judicial review, to specifically refer to the order of the court and provide reasons as to how and why the second decision differs from the first. The duty of the visa officer is to determine whether the applicant meets the statutory requirements for admission to Canada. The content of the duty of fairness varies according to the context: Baker v. Canada, [1999] 2 S.C.R. 817. The various factors, relevant to a determination of that content in the context of visa applications, are articulated in Khan v. Canada (Minister of Citizenship and Immigration), [2002] 2 F.C. 413, 283 N.R. 173 (F.C.A.). They include: the absence of a legal right to a visa; the onus on an applicant to establish eligibility; the less serious impact on an individual that refusal has, when compared with the removal of a benefit. Of particular significance is the following excerpt from Khan:
... [W]hen setting the content of the duty of fairness appropriate for the determination of visa applications, the court must guard against imposing a level of procedural formality that, given the volume of applications that visa officers are required to produce, would unduly encumber efficient administration. The public interest in containing administrative costs and in not hindering expeditious decision- making must be weighed against the benefits of participation in the process by the person directly affected.
[18] The applicant does not suggest that she was deprived of participation in the process. To require, as a component of the duty of fairness, that a visa officer provide an explanation of the distinguishing factors, between a decision on redetermination and an initial decision, is indeed an onerous burden. In my view, such a requirement does not exist. The visa officer was under a duty to comply with the order of the court (to reconsider and redetermine the matter), not under a duty to discuss it.
[19] Regarding the visa officer's duty to advise the applicant of her concerns and allow the applicant an opportunity to respond, the record discloses that the duty was fully discharged. The officer explained to the applicant, at the interview, that she was not satisfied with the applicant's ability to establish a viable business in Canada and she explained why that was so. She provided the applicant with an opportunity to respond and the applicant did respond, but not to the satisfaction of the visa officer. Nor was the visa officer under a duty to delay her decision to enable the applicant to submit additional documents. This issue does not truly surface here because the post-interview correspondence from the applicant's counsel was not received by the visa officer until after the decision had been made. Even if that were not the case, this was the second processing of the application and any supporting documentation should have been submitted on or before the time of the interview.
ISSUE (3): Did the visa officer err in law,
(a) by placing undue emphasis on the lack of previous business experience in assessing the applicant's ability to establish a successful business in Canada;
(b) by considering, as part of the final assessment, whether the applicant's proposed business would "make a significant contribution to the economy or the cultural or artistic life of Canada"?
[20] Again, I conclude that the questions must be answered in the negative. The applicant argues that previous business experience is not a prerequisite for self-employed immigrants and submits that "... past self-employed experience should not bear overwhelming importance" in her particular circumstances.
[21] The visa officer's affidavit (supported by the CAIPS notes) demonstrates that the officer considered multiple factors in her assessment of the applicant's ability to establish and maintain a viable business in Canada. The applicant's previous business experience, or lack thereof, was not essential to that assessment. Rather, the officer noted that there was no convincing evidence that the applicant's services would be in demand, that the type of the proposed services (of the business) is usually offered in Canada by low-skilled workers or volunteers, that the applicant had no skills or experience in counselling (a component of the proposed services of the business), and that the applicant's business management and revenue generation plans were unrealistic. The applicant relies on Grube v. Canada (Minister of Citizenship and Immigration) (1996), 118 F.T.R. 163 (T.D.) and Margarosyan v. Canada (Minister of Citizenship and Immigration) (1996), 123 F.T.R. 196 (T.D.) in support of the proposition that previous business experience is not a prerequisite for being accepted as a self-employed person and that lack of such experience should not be given undue emphasis. Those authorities do not assist the applicant because the visa officer, here, did not place undue emphasis on previous business experience. That factor was one of several considered by the officer. It is unnecessary to consider the respondent's submission that the authorities cited have been distinguished on the basis that they deal with immigrants whose contribution was to be artistic or cultural.
[22] The applicant's argument regarding the interpretation of the relevant provisions of the Regulations (section 8 and subsection 2(1)) was withdrawn at the hearing.
[23] In the result, I am regrettably unable to conclude that, in assessing the applicant in the self-employed category, the visa officer erred in law. A decision is reasonable if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. The question is whether the reasons, taken as a whole, are tenable as support for the decision: Law Society of New 2003 SCC 20">Brunswick v. Ryan, 2003 SCC 20, [2003] S.C.J. No. 17. Here, the visa officer's findings are reasonably supported by the evidence.
[24] The application for judicial review will be dismissed and an order will so provide. The amended requested relief is sought only if the application for judicial review is allowed. Since that is not the case, I need not deal further with the amendments.
[25] Counsel for the applicant suggested two questions for certification, one of which was contingent upon success on this application. That question will not be certified. In relation to the other proposed question, the respondent argued that it is fact-specific and not of general importance. While there is merit in that submission, it is also true that a significant number of applicants meet with success on judicial review applications and the usual practice, in such cases, is to remit the matter back for reconsideration and/or redetermination by a different visa officer. The following question will be certified:
Where a visa officer refuses an application for permanent residence on redetermination, after a previous decision was set aside by the court, is the visa officer obliged to specifically state or set out the differences between the two decisions?
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Judge
Ottawa, Ontario
June 13, 2003.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-98-01
STYLE OF CAUSE: LAI SHEUNG EVA LEE v. MCI
DATE OF HEARING: June 11, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER BY: Madam Justice Carolyn Layden-Stevenson
DATED: June 13, 2003
APPEARANCES BY: Mr. Cecil Rotenberg
For the Applicant
Ms. Marissa Bielski
For the Respondent
SOLICITORS OF RECORD: Mr. Cecil Rotenberg
Toronto, Ontario.
For the Applicant
Ms. Marissa Bielski
Department of Justice
Toronto, Ontario
For the Respondent
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