Date: 20000704
Docket: IMM-6636-98
BETWEEN:
JING-HUI CAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of visa officer, Marlene Edmond, dated October 14, 1998 in which the Applicant"s application for permanent residence in Canada was refused.
[2] The Applicant, a citizen of the People Republic of China, applied for permanent residence in Canada under the self-employed/chef category through the Canadian Consulate General in Los Angeles in November 1996.
[3] On January 13, 1998, the Applicant"s application was assessed and it was determined that it would be necessary to interview the Applicant in order to assess his qualifications and experience.
[4] On February 25, 1998 a formal request to have the Applicant"s file transferred to Detroit was received.
[5] Pursuant to transfer procedures, the Applicant"s application was thus withdrawn in the Computer-Assisted Immigration Processing System (CAIPS) and returned to the regional processing centre in Buffalo, N.Y. The processing office accordingly opened a new file for the Applicant.
[6] The Applicant"s work experience includes working as a farm worker in the People"s Republic of China from 1973 to 1986, and again in Bermuda from 1994 to 1995. The Applicant was also employed by China Travel Services as a kitchen worker from 1986 until 1990 when he commenced work as a Chef until 1993.1
[7] The Applicant did not attend cooking school and did not have any formal training as a Chef.
[8] The Applicant has been living in Canada since 1995 as a visitor. He claims to have invested $20,000 in a restaurant business in Burlington, Ontario with a relative.
[9] On October 14, 1998, the Applicant was interviewed with the assistance of an official translator.
[10] At the end of the interview the Visa Officer advised the Applicant that his application for permanent residence was refused. A letter dated October 14, 1998 with the visa officer"s reasons was also sent to the Applicant.
VISA OFFICER"S DECISION
[11] The visa officer determined that the Applicant did not meet the selection requirements as a self-employed Chef (CCDO 6121-11) and (NOC 6241). As such, the Applicant was awarded the following units of assessment:
[12] Moreover, the visa officer was not satisfied that the Applicant would be able to become successfully established in his occupation or business in Canada, and therefore, did not award the Applicant 30 units of assessment as a self-employed applicant under subsection 8(4) of the Immigration Regulations (the Regulations)2. The basis of the visa officer"s decision reads as follows:
| I do not see from the documents that you have provided and from what you indicated at your interview that you have any experience as a business person. You have been unable to substantiate the fact that you ever ran a successful business. At interview, you had no supporting documents proving that you actually ran a profitable business. In my opinion, you do not have the in depth (sic) experience, the skills, the expertise nor the ability to be able to establish successfully as self-employed. Due to all of this, I am not satisfied that you would be able to become successfully established in Canada in your proposed business venture.3 |
ANALYSIS
[13] The Applicant submits that the visa officer had no authority to assess his application given that the Respondent"s Canada-wide immigration computer data base, Field Operational Support System (FOSS) indicated that his application had been approved, twenty-two months before she actually seized the file. Therefore, the Applicant submits that the issue is res judicata.
[14] The FOSS record in fact refers to the Applicant"s application for permanent residence and states that the application was "approved 13 Jan 98, but decision was withdrawn 11 Mar 98, because client requested file be transferred to Detroit".4
[15] As referred to in the visa officer"s affidavit,5 the mention "approval and withdrawal" does not signify that a final decision was made on the Applicant"s application for permanent residence and then subsequently withdrawn, but refers to a paper-screening approval. In fact, this is confirmed by the annotation in the CAIPS notes that the Applicant should be convoked to an interview.6 Therefore, as no final decision was ever made, it is clear that the visa officer had the authority to proceed with the Applicant"s application for permanent residence.
[16] As noted above, the Applicant"s application was returned to the regional processing office after the Applicant requested a transfer to the Detroit office. After paper-screening the application, the Buffalo office decided that a selection interview was required and thus contacted the Applicant to invite him to an interview in New York.
[17] The Applicant contends that since he paid to have his file transferred from Los Angeles to Detroit that he had a legitimate expectation that the Respondent would honour the contractual terms it had proffered.7
[18] Firstly, the request to have a file transferred is, in fact just that, a request, not a contract as submitted by counsel for the Applicant. Secondly, where there is no legal right to a benefit, a person can only have a reasonable expectation of obtaining that benefit where there is an "express promise" or a "regular practice" of granting that benefit in such situations.8
[19] Further, as advanced by the Respondent, no evidence has been produced by the Applicant attesting to a promise that the Applicant"s application would be processed in Detroit as requested. Moreover, the transfer procedure by the regional processing office in Buffalo involves the weighing of several factors before determining which office will eventually be selected for an interview.
[20] I understand the Applicant"s discontent on this issue, however, the circumstances of this case do not give rise to the doctrine of legitimate expectation.
| (2) Assessment of "self-employed" |
[21] Pursuant to the Immigration Regulations, applications under the self-employed category involve a two-stage analysis. Applicants are assessed in accordance with paragraph 8(1)(b) and subsection 8(4) of the Regulations and must also satisfy the regulatory definition provided at subsection 2(1) which describes a "self-employed person" as "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".
[22] Paragraph 8(1)(b) of the Regulations directs the visa officer to consider the various factors listed in Column I of Schedule I, with the exception of the "arranged employment" factor. Whereas subsection 8(4) of the Regulations confers upon the visa officer a discretionary power to award an applicant an additional 30 units of assessment if, in the opinion of the officer, the applicant will be able to become successfully established in his occupation or business.
[23] In the case at bar, the visa officer determined that the Applicant did not meet the selection requirements as a self-employed chef pursuant to subsection 8(1) of the Regulations and concluded that the Applicant does not have the ability to establish a business in Canada that will create an employment opportunity for himself and make a significant contribution to the economic, cultural or artistic life of Canada.
[24] In reaching her decision, the visa officer considered several factors which are set out both in her CAIPS notes as well as her affidavit.
[25] First, given the Applicant"s work background as a farmer, the lack of training, certification and knowledge of cooking certification levels in China, the visa officer was not convinced that the Applicant had any experience as a Chef, either in Canada or China. It has been well established that the onus rests with the Applicant to demonstrate to the visa officer that he meets the selection requirements for landing.9 In this case, the visa officer did not believe the Applicant given the lack of evidence to support his experience as a Chef or Cook.
[26] Second, notwithstanding the Applicant"s assertion to have invested $20,000 in a restaurant business, the visa officer was not satisfied with the Applicant"s supporting evidence. In fact, the visa officer noted that the business license and registration were in the partner"s name only, that the Applicant could not provide any details concerning the daily activity of the business, that he could not discuss the financial situation of the business and that documents furnished concerning to the restaurant"s performance pertained to a period prior to the Applicant"s involvement.
[27] Finally, the visa officer considered the insufficience of evidence in respect to the Applicant"s financial abilities.
[28] In light of the factors considered by the visa officer in reaching her decision, I am of the view that the visa officer"s decision is well-founded.
[29] Moreover, it has been well established that this Court should not intervene in a discretionary decision by a visa officer where she has exercised her discretion in good faith, in accordance with principles of natural justice and where irrelevant factors were not considered.10
[30] On a last note, nevertheless, I believe it worthwhile to address an argument raised by counsel for the Applicant. He argues that undue emphasis placed on the regulatory definition of self-employed person may lead to disqualifying potential immigrants who satisfy the criteria specified in Column I of Schedule I of the Regulations.
[31] Although this argument is not pertinent to the case at bar, insofar as the Applicant was attributed 54 points, 16 units short of the required 70, I agree with counsel for the Applicant that undue emphasis on meeting the regulatory definition will bar applicants who are awarded sufficient units of assessment pursuant to paragraph 9(1)(b).11 In fact, this has been highlighted by Madame Justice Reed in Zhao v. Canada (M.C.I.)12 who stated as follows:
| I note as well, a very interesting editor"s comment, found together with the decision in Du v. Canada (Minister of Citizenship & Immigration) (1998), in 33 Imm. L.R. (2d) 102 (F.C.T.D.). The editor argues that undue emphasis is being place in the jurisprudence on the definition of a "self-employed person" that is found in subsection 2(1) of the Regulations. The editor notes that visa officers are directed, when assessing self-employed applications, to assess the application in accordance with Regulations 8(1)(b) and 8(4).13 |
[32] I am well aware that the guidelines provided by the Immigration Manual Overseas Processing, direct visa officer"s to first assess an applicant under the regulatory definition of self-employed, and then according to the factors set out in Schedule I pursuant to paragraph 8(1)(b), however, I raise this issue due to my concern that this procedure makes it very difficult for an applicant to succeed under the self-employed category. It should be recalled that the Immigration Act"s purpose is to permit immigration to Canada, not prevent it.14
| (3) Assessment of subsection 11(3) |
[33] As noted in Lam v. MCI15 by Justice Rothstein, there is no obligation on the visa officer to exercise his discretion under this provision:
| Where an applicant has reason to believe that he or she may be successfully established in Canada, irrespective of the units of assessment determination, he or she should apply for a determination under subsection 11(3) setting forth relevant reasons...there is no obligation on the visa officer to exercise a discretion under subsection 11(3). |
[34] Indeed, a visa officer may on his or her own motion proceed with an assessment under subsection 11(3) of the Regulations. However, if this were the case in the present situation, I am of the opinion that given the exceptional nature of this provision, that the visa officer would have made it quite clear if she were proceeding as such. There was no indication in the record that the visa officer had decided to assess the applicant under subsection 11(3) of the Regulations.
| (4) NOC criteria and assisted relative |
[35] The Applicant submits that the visa officer failed to assess the Applicant under the NOC criteria as required by subsection 2.03(2) of the Regulations.
[36] I find this argument without merit, insofar as a visa officer"s decision not to consider an applicant as a self-employed person constitutes an absolute bar and therefore there is no need to assess the Applicant"s application under the NOC system.16
[37] In addition, the Applicant contends that the visa officer erred in failing to assess the Applicant under the "assisted relative" category.17
[38] In the present case, the Applicant is not entitled to a bonus award under the assisted relative category given that he made his application under the self-employed category.18
| (5) Personal suitability assessment |
[39] Personal suitability is defined in Schedule I of the Regulations as follows:
| Units of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person"s adaptability, motivation, initiative, resourcefulness and other similar qualities. |
[40] In the present case, the visa officer awarded the Applicant 4 units of assessment on the personal suitability factor.
[41] In Gill v. Canada (M.C.I.),19 Jerome A.C.J. (as he was then) indicated the broad discretion conferred on the visa officer in assessing his/her personal suitability. In the case at bar, I find the visa officer"s determination to be reasonable.
[42] As indicated by the Respondent, it is not an error to consider language ability within the context of personal suitability where language is considered, among other factors, from the perspective of the Applicant"s ability to establish a business. The fact that the Applicant has not learned English since his arrival in Canada, three years ago, also attests to a lack of initiative and adaptability. In Hussain v. Canada (M.C.I.),20 Heald J. made it clear that the category of personal suitability is intended to be a basket clause encompassing a general concern with the Applicant"s ability to successfully survive economically in Canada.
[43] Keeping in mind the broad discretion conferred upon the visa officer, I am of the opinion that the Court"s intervention on this issue is not warranted.
CONCLUSION
[44] For the foregoing reasons, the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
July 4, 2000.
__________________
1 A photocopy of a handwritten document in Chinese with English translation (illegible) in Certified Record at 119.
2 1978, SOR/78-102.
3 Certified Record at 5.
4 Ibid. at 51.
5 Respondent "s Application Record at 4 [hereinafter RAR].
6 Ibid. at 15.
7 Certified Record at 53.
8 National Anti-Poverty Organization v. Canada (Attorney General), [1989] 3 F.C. 684 at 708 (F.C.A.).
9 Section 6 and 8 of the Immigration Act, R.C.S 1985, c. I-2, as am. See also Hajariwala v. Canada (M.E.I.), [1989] 2 F.C. 79 (F.C.T.D.).
10 To v. Canada (M.E.I.) (22 May 1996), A-172-93 (F.C.A.).
11 Subsection 9(1) of the Regulations provides:
9.(1) Subject to subsection (1.01) and section 11, where an immigrant other than a member of the family class, an assisted relative or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependents if ... (b) where the immigrant and the immigrant"s accompanying dependants intends to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8, and
(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment [emphasis added].
12 (17 February 2000), IMM-3382-98 (F.C.T.D.).
13 Ibid. at para. 13.
14 Hajariwala , supra note 9 at 82.
15 (1998), 152 F.T.R. 316 (F.C.T.D.).
16 Oh v. Canada (M.C.I.), (March 31, 1999) IMM-4931-97 (F.C.T.D.).
17 The Applicant has a sister living in Canada. See Certified Record at 130.
18 See section 10 of the Immigration Regulations, 1978.
19 (1996), 34 Imm. L.R. (2d) 127.
20 (1997), 36 Imm. L.R. (2d) 232.
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