Date: 20020116
Docket: IMM-286-00
Neutral citation: 2002 FCT 45
Toronto, Ontario, Wednesday, the 16th day of January, 2002
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
MO KIT KEI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of visa officer, Marlene Edmond, dated December 20, 1999, refusing the applicant's application for permanent residence under the self-employed category.
[2] The applicant, Mo Kit Kei, is a citizen of Hong Kong, China. She is currently a part-time lecturer at the Adult Education Unit, Education Department of Hong Kong, where she teaches English to grade five and six students and supervises nine other English teachers. In the past, apart from teaching, she has also worked as an assistant manager at Asia Consulting and Engineering Services and at Edward Chan and Company, and as a sales manager for Un Jin Enterprises Ltd.
[3] The applicant has a Bachelor of Arts degree which she obtained in 1968 from the University of New South Wales, Australia, as well as a Postgraduate Certificate in Education which she obtained in 1992 from the University of Hong Kong. The applicant has also completed a course from the Institute of Management Specialists (England) and was awarded the grade of Fellow.
[4] The applicant submitted an application for permanent residence under the self-employed category on April 14, 1999. Her intention was to establish "a reptile supermarket where customers could find everything they needed for their reptiles". At the selection interview held on December 14, 1999, the applicant informed the visa officer that she had changed her business plan and that she now intended to establish a tutoring centre in Edmonton, Alberta.
[5] In a letter dated December 20, 1999, the visa officer explained that the applicant was assessed as a self-employed/tutoring centre (National Occupational Classification No. 4131) and that she did not meet the requirements for admission to Canada. The visa officer also explained that she was not satisfied that the applicant would be able to become successfully established in her occupation or business in Canada. Thus, the visa officer did not award 30 units of assessment as a self-employed applicant pursuant to subsection 8(4) of the Immigration Regulations, 1978, SOR/78-172, as am. (the Regulations).
[6] Further, the visa officer was not satisfied that the applicant's proposed business venture would make a significant contribution to the economic, cultural or artistic life of Canada.
[7] A self-employed person is defined in section 2 of the Regulations 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.
[8] At the outset, I would like to point out that there are contradictions between the applicant's affidavit and the visa officer's affidavit. For example, the applicant alleges that the visa officer interrupted her during the interview, an allegation that the visa officer denies. In Yao v. Canada (M.C.I.), (1999) 172 F.T.R. 283 at para 11, there was a contradiction between the applicant and the visa officer's affidavits. Sharlow J. pointed out that the affidavit of the visa officer was supported by notes she took at the time of the interview. For that reason she accepted it over the evidence of the applicant. In the case at bar, I am satisfied that the visa officer's affidavit is supported in large by her CAIPS notes. I have no reason to doubt the visa officer's version of the facts.
[9] The applicant submits that the visa officer focussed on the applicant's past unsuccessful attempt to run her own business and should have focussed more on the applicant's plan to start her tutoring centre, for which she has relevant education and practical experience.
[10] I am satisfied that the visa officer did not exclusively rely on the applicant's past business experience. Her CAIPS notes show that she tried to discuss the proposed business plan with the applicant and that the applicant was unable to do so. Furthermore, such as was the case in Goebel v. Canada (M.C.I.), (1999) 159 F.T.R. 106, the visa officer gave the applicant an opportunity to respond to her concerns yet the applicant did not do so. In her CAIPS notes, the visa officer wrote:
I DO NOT SEE FROM HER DOCUMENTS AND BUSINESS PLAN THAT SHE COULD HAVE A VIABLE BUSINESS AND ESTABLISH SUCCESSFULLY IN CDA AS A SELF-EMPLOYED. I REMINDED HER THAT SHE WAS UNABLE TO DISCUSS HER BUSINESS PLAN WITH ME ALTHOUGH SHE CLAIMS TO HAVE PREPARED IT HERSELF. (Certified Tribunal Record at 105)
[11] As can be seen from the visa officer's affidavit, the applicant was asked relevant questions concerning her capacity to become successfully established. The visa officer explains:
The Applicant was unable to answer and clarify a few key points which I asked of her such as: Do the libraries have ESL programs free of charge? Why would immigrants or students pay for services that the Public Schools or non-profit organizations offered freely or at a lower rates [sic]. Are there such programs in Canada? How many of these services already existed in Edmonton? Those are the type of questions I usually ask in cases like this to determine the viability of the proposed business. (Respondent's Record at 5, para 12)
[12] Clearly, these types of questions are not indicative of a closed mind. To the contrary, they are directly related to the factors that the visa officer must evaluate in coming to her conclusion as to whether the applicant meets the requirements set out in the Regulations for immigrants in the self-employed category.
[13] Given these facts, I am not convinced that the visa officer placed too much emphasis on the applicant's past business and not enough on her new business plan. The visa officer acted in good faith and in accordance with the principles of natural justice and no irrelevant factors were considered (Goebel, supra; Awwad v. Canada (Minister of Citizenship and Immigration) (1999), 162 F.T.R. 209; To v. (M.E.I.), [1996] F.C.J. No. 696 (F.C.A.)).
ORDER
1. Consequently, there is no reason for this Court to intervene and the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
J.F.C.C.
Toronto, Ontario
January 16, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-286-00
STYLE OF CAUSE: MO KIT KEI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, JANUARY 15, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: TREMBLAY-LAMER J.
DATED: WEDNESDAY, JANUARY 16, 2002
APPEARANCES BY: Mr. Cecil L. Rotenberg, Q.C.
For the Applicant
Ms. Deborah Drukarsh
For the Respondent
SOLICITORS OF RECORD: Cecil L. Rotenberg, Q.C.
Barristers & Solicitors
255 Duncan Mill Road
Suite 808
Don Mills, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020116
Docket: IMM-286-00
BETWEEN:
MO KIT KEI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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