Date: 20010206
Docket: IMM-1348-99
Citation: 2001 FCT 26
Ottawa, Ontario, this 6th day of February, 2001
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
HONG SA YEH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of the visa officer rendered May 9, 1999 wherein the application for immigrant visas under the self-employed category were refused.
Background Facts
[2] The applicant has had several years of experience as a language teacher in Taiwan. The applicant obtained a teaching licence in 1960 when she taught grade school. She subsequently qualified as an instructor and later as an associate professor at a university in Taipei.
[3] The applicant applied for immigrant visas for herself, her husband, and her children. She indicated that she was applying under the self-employed category and intended to establish a tutoring centre in Canada to teach Chinese as a second language.
[4] The applicant attended a personal interview on March 9, 1999. The visa officer questioned the applicant about her teaching experience as well as her plans subsequent to her arrival in Canada. Specifically, the visa officer questioned the applicant about her lack of business experience in Taiwan, and the applicant's plans for managing a tutoring centre in Canada in light of the fact that she had no business experience and no knowledge of local laws or business practices. The applicant indicated that she had experience in teaching and that her husband could help with the business and any legal issues could be dealt with by a lawyer or accountant.
[5] When asked how the applicant would obtain clients for her tutoring centre, the applicant responded that promotion would be by word of mouth as well as through local media such as local newspapers. In addition, some children of friends in Canada would enroll in her class.
[6] The visa officer finally asked the applicant if she had any legal knowledge about building a teaching centre in Canada. When the applicant replied that she did not, the visa officer informed the applicant that her application was refused. The visa officer indicated that this decision was due to the fact that the applicant did not have any business experience and did not know any Canadian business law. Furthermore, the applicant was unsure that she could obtain clients for her business.
[7] The visa officer awarded the applicant 30 units of assessment pursuant to subsection 8(4) of the Immigration Regulations, 1978 SOR/78-172 (the "Regulations").
[8] The visa officer determined that the applicant could not be a self-employed person under the Immigration Act, R.S.C. 1985 c. I-2 (the "Act").
Applicant's Submissions
[9] The applicant submits that the CAIPS and handwritten notes are not properly part of the record before the Court and ought not to be relied upon since they are not supported by an affidavit from the visa officer.
[10] The applicant claims that the visa officer erred in law in the method used to consider her qualifications as a self-employed person. The applicant submits that upon expressing an intent to be a self-employed immigrant, the immigrant is entitled to be assessed in his chosen occupation like any other immigrant. If the immigrant is found to be likely to be successfully established in his business, he is entitled to 30 bonus points. The definition section of "self-employed person" is not a proper basis for basing a decision to refuse a visa--the intent to be self-employed is all that is required, in order to have the immigrant assessed in that category.
[11] Within this argument, the applicant argues that the Regulations pertaining to self-employed individuals are invalid, as they are not sanctioned by the Immigration Act.
[12] In the alternative, the applicant submits that the visa officer erred in finding, as a result of the applicant's lack of business experience and knowledge of local law, that the applicant could not qualify as an "entrepreneur".
Respondent's Submissions
[13] The respondent argues that there is no duty to file an affidavit of the visa officer and that the CAIPS notes are properly before the Court and may be considered.
[14] The respondent also submits that the argument of the applicant with respect to the procedure to be followed in an assessment of self-employed individuals is without merit, having already been rejected by the Associate Chief Justice in Pourkazemi v. Canada (Minister of Citizenship and Immigration) (1998), 161 F.T.R. 62 (F.C.T.D.).
[15] The respondent finally submits that the visa officer did not err in his assessment of the applicant nor import any additional requirements into the definition of self-employed person. The respondent argues that the lack of experience with grade level and junior high level children and lack of experience in a private sector environment, were all reasonable factors for the visa officer to consider in deciding that the applicant could not be issued a visa.
Applicable Law
[16] Various sections of the Immigration Regulations are relevant to the disposition of this application. The definition of a self-employed person is as follows:
| "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;
|
« 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.
|
| [17] The Regulations state that the self-employed person is to be assessed under the usual Schedule I factors for immigrant visas: |
| 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;
|
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;
|
| [18] And under subsection 8(4) of the Regulations, 30 bonus points are to be awarded to a self-employed person if the visa officer is of the opinion that they will become successfully established in the occupation or business: |
| 8(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.
|
8(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.
|
| [19] With respect to the argument that the definition of self-employed person is invalid as it is outside the scope of proper promulgation of regulations, subsection 114(1) of the Act states: |
| 114. (1) The Governor in Council may make regulations
(a) prescribing classes of immigrants and providing for the establishment, and the application to such classes, of selection standards based on such factors as family relationships, education, language, skill, occupational or business experience and other personal attributes and attainments, together with demographic considerations and labour market conditions in Canada, for the purpose of determining whether or not and the degree to which an immigrant will be able to become successfully established in Canada;
|
114. (1) Le gouverneur en conseil peut, par règlement_:
a) préciser des catégories d'immigrants et prévoir à leur égard l'établissement et l'application de normes de sélection, fondées sur des critères tels que la parenté, l'instruction, la langue, la compétence, l'expérience professionnelle ou l'expérience de l'exploitation d'une entreprise ou toutes autres qualités et connaissances personnelles et tenant compte des facteurs démographiques et de la situation du marché du travail au Canada, dans le but de déterminer si l'immigrant pourra ou non réussir son installation au Canada et si oui, dans quelle mesure;
|
| [20] The applicant raised a further issue on appeal in that he argued that the visa officer was in error to award 30 bonus points to the applicant pursuant to subsection 8(4) of the Regulations and also to find the applicant did not meet the definition of "self-employed person" within subsection 2(1) of the Regulations. |
| [21] At the close of the hearing, I gave time to counsel to submit written submissions on this new issue. However, when the respondent submitted her submissions, the respondent conceded that this case was "on all fours" with the case of Yeung v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1336, A-43-99 (August 22, 2000) (F.C.A.) and the respondent offered to consent to the application for judicial review but that the respondent should have its costs in the amount of $2,000 to be paid forthwith by the applicant. |
| [22] The applicant, by letter to the Court, objected to paying what the applicant classified as "solicitor and client costs". |
| [23] Since the respondent has conceded that the application for judicial review should be granted as a result of the new argument of the applicant, I will grant the application for judicial review based on this new argument only. It is not necessary that I decide on the other issues raised by the applicant. |
| [24] The applicant has requested that I certify a serious question of general importance pursuant to section 83 of the Immigration Act. I am not prepared to certify the question in the circumstances of this case. |
| [25] As to the issue of costs, I am not prepared to award costs to the respondent as the respondent was a party to the Yeung, supra case which led to the disposition of this case. |
| [26] IT IS ORDERED that the application for judicial review is allowed for the reason noted in this decision. |
| [27] AND IT IS ORDERED that there will be no order as to costs. |
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