Date: 20020509
Docket: IMM-2212-00
Neutral citation: 2002 FCT 534
Ottawa, Ontario, Thursday the 9th day of May 2002
PRESENT: The Honourable Madam Justice Dawson
B E T W E E N:
WON-KYOO LEE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Mr. Lee asserts that in rejecting his application for permanent residence in Canada in the entrepreneur category, the visa officer failed to observe procedural fairness and demonstrated bias or a reasonable apprehension of bias.
[2] Mr. Lee and the visa officer recount irreconcilable versions of what transpired at Mr. Lee's interview held in connection with his application.
[3] Mr. Lee states in his affidavit that at the beginning of the interview he requested an interpreter since he felt more comfortable speaking in Korean than in English, but that the visa officer refused. Thereafter, he says that while he had presented a detailed written business plan, the visa officer ignored the plan and instead focussed her questions on Mr. Lee's employment history.
[4] The visa officer says that she began the interview by testing Mr. Lee's ability to speak, read and write in English, but that immediately after such testing they "resumed" the use of an interpreter. The visa officer further says that she questioned Mr. Lee about his business plan, but that he was unable to speak to, or elaborate upon, any of the details in the written plan. The visa officer did discuss with Mr. Lee, she says, his employment history.
[5] Neither Mr. Lee nor the visa officer were cross-examined on their affidavits.
[6] Given that the visa officer was less directly affected by the outcome of the interview and so has less reason to distort the facts, and given that the officer's handwritten notes and Computer Assisted Immigration Processing System notes are consistent with her affidavit evidence in the sense that their content is more consistent with the presence of an interpreter, I am not prepared to favour Mr. Lee's evidence over that of the visa officer in the absence of any cross-examination.
[7] It follows that much of the evidentiary basis for Mr. Lee's submissions is not established.
[8] Mr. Lee additionally argues that the visa officer breached procedural fairness in ignoring or giving inadequate weight to his business plan, and by perversely assuming that a person who had worked for 16 years in management in the house building industry could not function as an entrepreneur in that same industry.
[9] However, the visa officer was entitled to consider all of the evidence before her and was entitled to draw the conclusions which she did from the fact that Mr. Lee was unable to speak to, or elaborate upon, his business plan.
[10] No breach of procedural fairness was established.
[11] The allegation of bias was premised on the fact that the officer refused the request for an interpreter and gave specious and spurious reasons for rejecting the application. As noted above, the refusal of an interpreter was not established, and the visa officer was not limited to considering the written business plan, but could draw inferences from Mr. Lee's inability to discuss it. The visa officer did not proceed on the premise that Mr. Lee could not have acquired the necessary skills as an employee as alleged, but rather considered that there was little evidence that Mr. Lee had in fact acquired the necessary skills. The reasons of the officer were neither specious nor spurious.
[12] In oral argument counsel for Mr. Lee attempted to argue that even if an interpreter was provided, there were problems with that interpretation and the visa officer should not have started the interview in English as that created unnecessary embarrassment to Mr. Lee. This was said to have created an apprehension of bias. However, those arguments were premised on facts not in evidence, and upon facts contrary to Mr. Lee's own evidence. There is no evidentiary basis for the allegation of apprehension of bias.
[13] The application for judicial review will therefore be dismissed.
[14] Counsel did not ask for a question to be certified.
ORDER
[15] IT IS HEREBY ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2212-00
STYLE OF CAUSE: WON-KYOO LEE v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: April 29, 2002
Reasons for order of the honourable Madam Justice Dawson
DATED: May 9, 2002
APPEARANCES:
Mr. Joseph Farkas FOR THE APPLICANT
Mr. Kevin Lunney FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Joseph Farkas FOR THE APPLICANT
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada
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