Date: 20020115
Docket: IMM-1107-00
Neutral citation: 2002 FCT 43
BETWEEN:
XUEYONG GAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks judicial review of a decision of a visa officer dated January 27, 2000, in which she refused the applicant's application for permanent residence as a self-employed chef (NOC 6241.3).
[2] The issues are whether the visa officer erred:
(a) in not assessing the applicant "with an open mind";
(b) in failing to assess the applicant in accordance with section 8 of the Immigration Regulations;
(c) in failing to consider positive discretion pursuant to subsection 11(3) of the Immigration Regulations in awarding only two units for personal suitability; and
(d) in failing to allow post-interview clarification of the applicant's assets.
[3] In my view, the visa officer did review the applicant with an open mind. She was forthright and honest in her responses in cross-examination and I am satisfied that she acted in a professional and responsible manner.
[4] I must now consider whether the visa officer failed to assess the applicant in accordance with section 8 of the Immigration Regulations. The applicant submits that the visa officer is supposed to ascertain whether the applicant will be able to become "successfully established" in Canada.
[5] In the visa officer's refusal letter she stated:
I do not see from the documents that you have provided and from what you indicated at your interview that you have any qualifications as a business person. You have been unable to substantiate the fact that you ever ran or had active participation in a successful business. You did not have any idea of the business transactions of the business where you said that you worked. You were unable to provide any proof that your proposal is a viable business that will provide employment for yourself, and be able to support your wife who is a housewife and your two children in China, and that you will establish successfully in Canada in your business venture. 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 experience, the skills, the expertise nor the ability to be able to establish successfully as self-employed. Due to all this, I am not satisfied that you would be able to become successfully established in Canada in your proposed business venture.
[6] Although the applicant had requested assessment only as a self-employed person, the applicant brought with him to the interview a job offer as a chef with an annual salary of $33,800 from a Toronto restaurant. In my view the officer did not err in assessing the applicant only as a self-employed chef. As I noted in Guang Lin v. M.C.I., [2001] F.C. 1272, an officer is not required to assess an applicant in every possible category. In this case, he has applied in the self-employed category only and there was no duty on the officer to assess him as an independent. It would have been preferable for the visa officer to ask the applicant if he was interested in being assessed as an independent but it is not unreasonable for a visa officer to find that a job offer was not relevant to someone who intended to open his own business in Canada.
[7] The applicant also submits that the visa officer erred in basing her decision in part on a lack of prior business ownership, and that prior business ownership is not required for a self-employed applicant or even an entrepreneur. In my view there is no reviewable error on this issue. Although an officer may err if the officer places undue emphasis on the lack of prior business experience in assessing self-employed applicant, it also is clear that it is a factor that may be considered, provided it is not the only factor. Hansen J. in Alimard v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 1223 (T.D.) stated at paragraphs 9 and 10:
[9] This issue was earlier addressed in Hui v. Canada (Minister of Employment and Immigration) [1986] 2 F.C. 96 at 102 where Stone J.A. explained that the definition of entrepreneur is complete. He stated:
... Importation of a "proven track record in business" into that definition would mean that some applicants for permanent residence under this category could never meet the "ability" requirement. As I read it, the language of that definition does not close the door to an applicant who happens to lack such a record. It requires simply that the applicant have the required "ability". If it were otherwise, no applicant could meet that requirement without first establishing "a proven track record in business". That, plainly, was not intended by the language used.
[10] This decision, however, has been distinguished where ownership was not the only factor considered by the visa officer. For example, in Zhen v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. No. 1537 Heald J. stated:
... When the decision of the visa officer is read in its entirety, it is evident that the visa officer did not consider ownership of a business to be the only or most important indicia of ability...
[8] I also agree with Rothstein J. in Lobzov v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1065 (T.D.) where he stated at paragraph 6:
6 However, I do accept that past business experience is not the sole criterion to be considered, that it must be considered in light of what is intended to be undertaken in Canada and that it may be of greater significance in relation to some undertakings than others.
In my view, in the case before me the applicant is concerned about the weight the officer gave to different parts of the evidence. It was not unreasonable for the visa officer to find that the applicant was ignorant of business and financial transactions and to consider this in her decision. The applicant also indicated that he did not have knowledge of the business transactions of his previous employment. He submitted a business plan prepared by his accountant and when questioned he could not explain it. There is evidence which indicates he had some knowledge of the business plan but there is also evidence to the contrary. It was open to the visa officer to decide as she did even though I might have found otherwise. I also accept that it is not necessary in a fast food business to have very much managerial and business acumen. Certainly parts of the applicant's evidence indicated that he was ignorant of business and financial transactions and that accordingly the officer was not unreasonable in making the finding that she did.
[9] The applicant also submitted that the officer erred in not considering positive discretion pursuant to subsection 11(3) of the Immigration Regulations. In my view there was no error on this issue. The applicant was only awarded 51 units and the discretion only needs to be considered where the applicant has come close to obtaining 70 units of assessment. See: Evans J.A. in Han Quin Chen v. MCI, [1999] F.C.J. No. 528.
[10] The next issue is whether the officer erred in awarding only 2 units for personal suitability. When asked to explain this award of 2 units, the visa officer stated in a cross-examination on her affidavit:
Didn't have any knowledge of Canada. He had been seven years in United States and had not managed to learn any English at all. I didn't believe that he would establish well in Canada. In assessment I took into consideration his ability for him to establish essentially in Canada and take into consideration his ability, his motivation, his initiative, his resourcefulness.
He had spent seven years in the United States and had not learned English. I did not think that he had tried to better himself in his cooking skills in the United States. He had very little knowledge of Canada. I did not think that he contributed to the economy of the country where he worked. And that's what I took into consideration, sir.
She also took into account that he had not sent in any income tax returns for at least three years. While there is some case law suggesting that a visa officer should not consider whether the applicant paid taxes in assessing personal suitability, in this case this is only one of the many factors considered and was not one of the factors cited in the letter of refusal. While the officer could have considered the fact that the applicant had survived economically seven years in the United States, this goes to the weight to be attributed to the different factors. It was not unreasonable for the visa officer to award only 2 units for personal suitability. It is a discretionary decision and there was evidence to support the finding that the applicant had failed to learn about Canada or to learn English despite being in the United States for seven years. Her evidence also indicated that she considered his ability, his motivation, his initiative and his resourcefulness. Therefore, there was no error by the visa officer in awarding 2 units in the circumstances of this case.
[11] The last issue is whether the visa officer erred in rejecting the evidence of his assets and not allowing him to provide post-interview clarification. The evidence shows that the applicant was told that he would have to supply certified translated documents of any documents which were not in English. It is not up to the officer who could not read Chinese to start comparing characters of his wife's name on the bank statement with those on her birth certificate to decide if they are the same. The visa officer had alerted the applicant to the problem. Furthermore, when the visa officer pointed out the problem with the documents, the applicant did not ask for further time to submit more documents. Finally, in this case, the visa officer did not rely on the lack of sufficient assets by the applicant to turn down his application.
[12] The applicant also sought costs in this matter and part of the reason therefor was the alleged lack of open mind of the visa officer. Since I have found that the visa officer acted in a responsible manner, that factor is to be ignored. There was no bad faith here by the visa officer. Accordingly, I will not award any costs.
[13] The application for judicial review is dismissed.
"W.P. McKeown"
J.F.C.C.
Toronto, Ontario
January 15, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1107-00
STYLE OF CAUSE: XUEYONG GAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, DECEMBER 18, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: TUESDAY, JANUARY 15, 2002
APPEARANCES BY: Mr. Timothy E. Leahy
For the Applicant
Ms. Neeta Logsetty
For the Respondent
SOLICITORS OF RECORD: Timothy E. Leahy
Barrister & Solicitor
5075 Yonge Street
Suite 408
North York, Ontario
M2N 6C6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020115
Docket: IMM-1107-00
BETWEEN:
XUEYONG GAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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