Date: 20011126
Docket: IMM-1335-00
Neutral citation: 2001 FCT 1293
BETWEEN:
SIU MING LEUNG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks judicial review of a decision of the visa officer dated February 9, 2000, wherein he rejected the applicant's application for permanent residence in the self-employed category.
[2] The issue is whether the visa officer erred in finding that the applicant did not have the requisite ability to establish a business in Canada.
[3] The applicant submits that the visa officer could not reasonably have come to the conclusion he did on the evidence.
[4] The visa officer made the following finding:
I have determined that you do not meet the definition of a self-employed person. Specifically, you have not satisfied me that you have the ability to establish or purchase a business in Canada that could create employment for you and would make a significant contribution to the economy or the cultural or artistic life of Canada;
[5] The applicant submits that the visa officer erred in placing undue emphasis on self-employment experience rather than the ability of the applicant.
[6] The visa officer expanded on his reasons in his affidavit. At paragraph 6 he stated:
I then turned to an examination of Mr. Leung's plans for Canada. Mr. Leung stated that he intended to establish a tutoring centre in Canada, to provide tuition in all subjects at the primary level. [I note in fact that Mr. Leung was going to provide tuition at the primary and secondary level. He indicated he would provide tutoring services for subjects such as math, Chinese and science as well as reading and writing skills. The applicant further stated that he intended to offer special services to slow learners.]
I noted that Mr. Leung had been to Canada twice, and on his most recent trip, Mr. Leung attended a provincial government business immigration seminar. Mr. Leung demonstrated noteworthy research and planning for his intended business, having investigated licensing requirements, taxation, rental prices and other costs of doing business in Canada, and having investigated the market for such services in Canada, including visiting some centres of the type he intended to establish. I then enquired about Mr. Leung's knowledge of Canadian curricula and teaching methods. Mr. Leung replied that he intended to focus on recent immigrants to Canada, providing tutoring in their own language. He stated he had skimmed some teaching materials in Canada. When asked how he would attract students to his centre, Mr. Leung stated he would rely on friends in Canada, who have promised to send their children to him, and word of mouth. Mr. Leung stated he would charge $12 (Canadian) per hour for students at the primary level, and $25 (Canadian) for secondary students. This fee was determined as being 30% of the current market price. Mr. Leung estimated he would require 15 students per day to break even at those rates.
The visa officer continued with Mr. Leung's explanation as to why he had not started a tutorial centre in Hong Kong because of the regulatory requirements and expensive rents. The visa officer then continued at paragraph 8:
At this point in the interview, I made note of my concerns with the application. I noted that Mr. Leung has no experience in business management and had never been self-employed in Hong Kong. While past business experience is not a requirement of the self-employed category, past experience can be an important indicator of ability and potential for self-employment in the future. I noted that Mr. Leung had no experience in promotion of his services, as he had never advertised for or recruited students himself. He has always been employed in the public education system, or in private tutorial centres where he was not involved in recruitment or promotion. Though he had done research on the costs and requirements of setting-up a business in Canada, I noted that Mr. Leung had no past experience in areas such as negotiating rents, arranging facilities, or setting fees. Of particular concern regarding Mr. Leung's ability to establish himself in his intended occupation in Canada, was his lack of familiarity with Canadian curricula and teaching methods. I was concerned about the transferability of Mr. Leung's knowledge and experience to the Canadian context, given the differences in the education systems and pedagogical methods of Hong Kong versus Canada. There are significant differences in education standards and practices.
Mr. Leung explained that he had not seen a tutorial service for slow learners.
[7] The visa officer again advised the applicant of his concerns regarding his ability to establish or purchase a business such as that proposed and his ability to establish himself in his intended occupation in Canada. The applicant informed him that he had taken a couple of business management courses and that he knew how to promote his services using flyers and advertisements and web sites in order to attract students in high school and university in learning Chinese and that special needs education was his area of expertise. The visa officer again decided that his concerns had not been sufficiently addressed by the applicant and refused the application.
[8] In my view the officer erred in his concern with respect to the lack of past experience in negotiating a commercial lease and arranging facilities and setting fees. It is highly unlikely that most self-employed persons would have experience in negotiating a commercial lease. Furthermore, the lack of experience in arranging facilities is somewhat dubious. The officer indicated in his cross-examination that he was concerned about buying supplies or acquiring things like computers for the office, desks, chairs, blackboards and whatever is required to operate a tutorial centre. However, he has assisted with administration of a school and even the officer admits he may have done some of this in that position. The onus is on the applicant to show that he did this, however, and he should not have to rely on the officer making an inference. I am concerned with the officer's view about the lack of experience in setting tuition fees when this applicant had obviously spent some time in finding out what the fee structure was in Canada and indicated that he planned to discount the fee by 30% in order to get business. The officer does not comment on whether this 30% discount is a reasonable figure or not. He just says that the applicant has no experience in setting fees. It was reasonably open to the officer to find that the applicant did not have knowledge of Canadian curricula and teaching methods.
[9] Although I would have decided the matter differently from the visa officer, that is not the test. The test is set out by Pinard J. in Goebel v. The Minister of Citizenship and Immigration, [1999] F.C.J. No. 9 (T.D.), where he states at paragraph 6:
Under the circumstances, even if I were to have come to a different conclusion than the visa officer, it would not be open to me to disturb her decision. In Chiu Chee To v. M.E.I. (May 23, 1996), A-172-93, the Federal Court of Appeal held that the appropriate standard of review for discretionary decisions of visa officers with respect to immigrant applications is the same as that enunciated by the Supreme Court of Canada in [1982] 2 S.C.R. 1">Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 1, where Mr. Justice McIntyre stated at pages 7 to 8:
... It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere ...
[10] In Ho v. Minister of Employment and Immigration, (1989) 27 F.T.R. 241, Associate Chief Justice Jerome stated that it was an error to place undue emphasis on the lack of experience as a self-employed teacher and that this was a breach of the duty of fairness to the applicant.
[11] In my view the officer did place undue emphasis on the applicant's lack of experience and ignored his teaching experience, including private tutoring. The applicant has done market research in Canada, met with accountants, sought out business space, and set up a plan for a fee structure and advertising. The applicant had also taken a couple of business courses. It was unreasonable for the officer to find that these factors were outweighed by his lack of self-employed experience. While the applicant may not have negotiated a commercial lease before or set up a fee structure, it seems clear from the evidence that he had done sufficient research and planning to be able to perform these tasks.
[12] The application for judicial review is allowed. The matter is returned for redetermination by a different visa officer. The decision of the visa officer dated February 9, 2000, is quashed.
The matter is to be determined in accordance with the present Immigration Act and Regulations and not the new Act.
"W. P. McKeown"
JUDGE
TORONTO, ONTARIO
November 26, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1335-00
STYLE OF CAUSE: SIU MING LEUNG
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, NOVEMBER 13, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MCKEOWN J.
DATED: MONDAY, NOVEMBER 26, 2001
APPEARANCES: Mr. Cecil Rotenberg, Q.C.
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Cecil L. Rotenberg, Q.C.
Barrister & Solicitor
United Centre
808-255 Duncan Mill Rd.
North York, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011126
Docket: IMM-1335-00
Between:
SIU MING LEUNG
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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