Date: 20021025
Docket: IMM-3898-00
Neutral citation: 2002 FCT 1115
BETWEEN:
MINGLIANG ZHENG,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
LAYDEN-STEVENSON J.
[1] The applicant applied for permanent residence in Canada as a self-employed chef. By decision dated June 19, 2000, a visa officer refused the application. The applicant seeks judicial review of that decision.
[2] The applicant, Mr. Zheng, is a citizen of China where his wife and three children reside. He has been living in the United States, without durable immigration status, since June, 1993. He has been employed as a cook in Chinese restaurants in Seminole, Oklahoma and in Boston, Massachusetts.
[3] The visa officer assessed the applicant in accordance with the relevant factors found in Schedule I of the Immigration Regulations, 1978, SOR/78-172 (the Regulations) and awarded him 56 units of assessment rather than the minimum 70 units required to qualify for immigration. He was not awarded the 30 bonus units for self-employed applicants. The primary basis for the decision is evident from the refusal letter. Mr. Zheng did not meet the definition of "self-employed person" as contained in subsection 2(1) of the Regulations.
[4] The applicant alleges various errors by the visa officer, specifically:
(a) failure to assess the applicant with an open mind;
(b) improper discounting of the applicant's business plan;
(c) improper rejection of the applicant's assets;
(d) failure to properly assess personal suitability;
(e) failure to assess the applicant in accordance with the Regulations;
(f) failure to properly assess the applicant in accordance with the definition of "self-employed person".
The applicant additionally submits that this matter reveals special reasons that merit an award of significant legal fees to him.
(a) failure to assess the applicant with an open mind
[5] The applicant argues that the visa officer is required to assess with an open mind and to be thorough and fair. In support of his argument, he recites the various grounds of review set out in (b) to (f) noted earlier and also says that this particular visa officer has rejected other Chinese chefs who have applied as self-employed applicants. In her affidavit, the visa officer, in response to the latter allegation, notes that the applicant refers only to applications that were refused and does not refer to those approved. The officer deposes that she determined each of the applications in good faith and on the basis that, in her opinion, those who were refused did not meet the requirements of the Immigration Act, R.S.C. 1985, c. I-2 and the Regulations. The respondent did not argue that the latter allegation is irrelevant with respect to this application.
[6] Having reviewed the record in its entirety, I find no evidentiary basis for this alleged ground of review. If reviewable errors are found to exist, they do not, in and of themselves, constitute grounds for concluding that the refusal was predetermined by the visa officer or that she did not assess this application on its merits. The applicant's argument in this respect fails.
(b) improper discounting of the applicant's business plan
[7] The applicant argues that it was perverse for the officer to reject his business proposals. The fact that she may have seen the same plans, submitted by other applicants, does not mean that the plans are not viable. The visa officer, it is submitted, should have considered whether the projections and assumptions were realistic notwithstanding that she had seen the plans before.
[8] When Mr. Zheng presented two business proposals to the visa officer, she informed him that she had seen these same business proposals submitted by other applicants. She asked the applicant whether he had discussed the plan with the person who prepared it. He responded that he had spoken with the author on the telephone. The applicant was able to correctly answer questions about the content of the business proposals but the visa officer was not satisfied, in the circumstances, that this was significant since the applicant had the proposals, in Chinese, in front of him for reference as he was being questioned. After further discussion, the visa officer ultimately determined that the business proposals, identical in content to those submitted by other similarly situated applicants, were not bona fides. She gave them no consideration.
[9] It is apparent, on their face, that the business proposals presented by the applicant were identical to those presented by at least one other applicant because the proposal found at pages 12 to 22 of the Tribunal Record contains a page entitled "Summary". The first paragraph of the "Summary" refers to Mr. Zheng but the second paragraph refers, not to Mr. Zheng, but to Mr. Lin. While the applicant was able to respond correctly to questions concerning the contents of the proposals, per se, he could not respond to questions regarding his plans or intentions for implementation of the proposals. The applicant is correct that as long as he possesses a bona fide intent to establish a business in Canada, it is not necessary that such intention be acted upon immediately upon arrival in Canada: Margarosyan v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm. L.R. (2d) 53 (F.C.T.D.); Cheng v. Canada (Minister of Citizenship and Immigration) (2001), 13 Imm. L. R. (3d) 28 (F.C.T.D.). Here, the applicant was unable to give any indication as to what he intended to do in accordance with the business proposals. The visa officer's difficulty was with what he intended to do not when he intended to do it. It appears to me that, if the applicant wanted the visa officer to attach any weight to the proposals, he ought to have been able to tell her what his intentions were in relation to them. Thus, in my view, the visa officer was entitled to come to the conclusion that she did with respect to the business proposals. The applicant cannot succeed on this ground.
(c) improper rejection of the applicant's assets
[10] The applicant argues that the visa officer, in disallowing all of his assets in China, without providing him the opportunity to address her concerns, breached the duty of procedural fairness. Additionally, he submits that the visa officer improperly dismissed the evaluation, by the applicant's village committee, with respect to his Chinese properties.
[11] In response to the visa officer's request for proof of assets, the applicant provided a letter from the Asian Bank and Trust Company indicating that a chequing account had been opened in January 1997 and the balance as of June 13, 2000 was $86,125.68. The applicant did not provide bank statements for the six-month period preceding his interview, as instructed. Correspondence from his bank in China indicating a balance of $15,156.06 was dated "10/7/98". The visa officer informed him that the latter, being outdated, was not acceptable. When asked about his property, the applicant stated that he had a house and some other properties in his village in China worth about 500,000 Yuan. He stated that the properties had not been evaluated but the village committee had assigned a value of 500,000 Yuan to these properties. He provided a statement from the Shoughan Villages Committee of Shoughan Town of Changle City that indicated a value of 500,000 Yuan for the house and properties. The visa officer concluded that the applicant had demonstrated that he had $86,125.68 to invest in his proposed business and to establish himself and his family in Canada.
[12] I am not persuaded that the visa officer erred in failing to consider the amount of $15,156.06 in determining the applicant's assets. The applicant was required to bring bank statements for the preceding six months to his interview. He was interviewed on June 15, 2000 and produced a 1998 statement from the Chinese bank. The authorities cited by the applicant to support his argument regarding procedural fairness do not apply to these circumstances. In Sadeghi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 337 (C.A.), the visa officer exercised negative discretion under subsection 11(3) of the Regulations. The Court held that it was unfair for the visa officer not to have apprised the applicant of her concerns after he had fulfilled the selection criteria. In Negriy v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 290 the Court found that the visa officer's concern with respect to the authenticity of documents was unfounded and, in that context, determined that further inquiries should have been directed to the issue of authenticity. In Alimard v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1223 (T.D.) the visa officer assigned no weight to a valuation provided by an applicant based upon her experience with respect to the reliability of valuations from Iraq and because she was unfamiliar with the organization that prepared the valuation. She relied on her knowledge in this regard without informing the applicant.
[13] An applicant bears the burden of establishing that he or she qualifies for immigration. Here, the applicant produced a staledated bank statement after having been instructed to submit current information. There was no obligation on the visa officer to express her concerns in this regard. Although she might have chosen to address the issue with the applicant, she was not required to do so. Hence, there was no breach of procedural fairness.
[14] With respect to the failure to include the Chinese properties in her calculation, I am persuaded that the visa officer erred. Although the applicant did not have a formal evaluation of his properties, he did produce the statement from the Shoughan Villages Committee referred to earlier, which indicated that the house and property had a value of RMB 500,000 Yuan (Tribunal Record, page 112). The visa officer's affidavit indicates that the officer asked the applicant if he had any property and he responded that "he had a house and some other properties in his village in China worth about 500,000Yuan, but that they had not been evaluated". The CAIPS notes entry states:
ASKED HIM IF HE HAD ANY PROPERTY. SAYS YES IN CHINA, BUT SAYS HE DOES NOT HAVE AN EVALUATION SAYS IS FROM THE VILLAGE THAT HOUSE AND OTHER PROPERTIES ARE WORTH ABOUT 500,000 YUAN.
[15] The visa officer's affidavit does not provide an adequate explanation as to why she failed to consider and include the Chinese properties in her calculation of the applicant's assets. In my view, this failure to consider evidence constitutes reviewable error. It is not a breach of procedural fairness; it is a failure to consider evidence. If material to the result, the decision must be set aside. The visa officer determined, based upon his lack of experience, skills and expertise, that the applicant did not have the ability to establish a business in Canada. She also found that the applicant lacked sufficient funds. It is not possible for me to determine whether, had she included the Chinese properties, she would have determined that the applicant had sufficient funds. However, it is readily apparent that even if he had sufficient funds, it would not alter the finding with respect to his ability. Thus, unless the visa officer is found to have erred in her conclusion regarding the applicant's ability, her failure to consider the Chinese properties, although an error, will not be material to the result.
(d) failure to properly assess personal suitability
[16] The applicant takes issue with the assessment of personal suitability and asserts that the visa officer failed to give consideration to his track record in the United States, including his proven ability to establish himself in an English-speaking milieu. Additionally, she considered the fact that the applicant failed to pay taxes in the United States, a fact that the Court has held to be irrelevant. Furthermore, the applicant argues, the assessment of this factor was made after the visa officer had "gutted" the application by disallowing his assets and business plans.
[17] The visa officer deposes that she assessed the personal suitability factor based on the applicant's adaptability, motivation, initiative, resourcefulness and other similar qualities. The affidavit and CAIPS notes indicate that the visa officer considered that the applicant's failure to learn English after residing in the United States for seven years reflected a lack of adaptability and initiative. She also considered that he knew very little about Canada, had not prepared himself for his move and that his motivation was to obtain legal status and bring his family to North America. The visa officer acknowledged that the applicant had accumulated $86,000 in savings during the time that he was in the United States but also considered that he had done so without the burden of paying income tax. On cross examination, when questioned as to what prompted her to award 4 units of assessment, the visa officer testified that it was because the applicant had managed to work in the United States, that he had worked in two different restaurants and had managed to save money.
[18] Various factors have been determined to be relevant to the assessment of personal suitability. The contentious factor here is the visa officer's reference to the payment of income tax, which the applicant correctly says has been held to be irrelevant in an assessment of personal suitability: Milovanova v. Canada (Minister of Citizenship and Immigration) (1999) 174 F.T.R. 109. Here, the visa officer was not faulting the applicant for failure to pay income tax as in Milavanova, supra. Rather, she was considering the applicant's savings and noted that the savings were accumulated without the burden of paying income tax. The size of an applicant's savings account, insofar as it provides a possible forecast of future economic success in Canada, is meaningful in the context of a personal suitability assessment: Ahmad v. Canada (Minister of Citizenship and Immigration) (1997) 137 F.T.R. 149.
[19] The applicant has failed to persuade me that the visa officer erred in her assessment of personal suitability. In the final analysis, unless the visa officer also erred in her finding that the applicant did not have sufficient ability to be able to become successfully established in his proposed business venture, the assessment with respect to personal suitability is immaterial.
(e) failure to assess the applicant in accordance with the Regulations
[20] The applicant argues that the visa officer erred by focussing exclusively on the definition of "self-employed person" when the determination whether to grant a visa ought to have been made under subsections 8(1) and 8(4) of the Regulations. The rationale behind the argument is that paragraph 9(1)(b) of the Regulations dictates that visas are to be issued to persons "who pass muster" pursuant to section 8, not pursuant to the definition. The applicant minimizes the impact of paragraph 9(1)(a), which requires that an applicant must also "otherwise meet the requirements of the Act and these Regulations" by suggesting that the paragraph should not be read to include the definition of "self-employed person".
[21] Relying on obiter dicta in Cao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1077 (F.C.T.D.) wherein Tremblay-Lamer, J. expressed concern as to whether visa officers were placing undue emphasis on the definition, the applicant argues that immigrants with sufficient units of assessment are barred, by the definition, from obtaining a visa. Further, he submits, if an individual who applies as a self-employed person is required to fit the definition, then a contradiction is created. Applicants can meet with success in the assessment under subsections 8(1) and 8(4) and yet fail to fulfill the requirements of the subsection 2(1) definition. The applicant presents two solutions to avoid this contradiction: the visa officer should apply positive discretion under paragraph 11(3)(a) of the Regulations and/or this Court should rule that the definition of "self-employed person" is ultra vires the Act.
[22] The applicant's argument regarding Cao, supra, ignores the fact that Tremblay-Lamer, J. determined that an applicant must satisfy the regulatory definition in subsection 2(1) in order to be granted a visa. It also ignores the fact that both subsections 8(1) and 8(4) refer to the phrase "self-employed person", the definition of which is contained in subsection 2(1). In Pourkazemi v. Canada (Minister of Citizenship and Immigration) (1998) 161 F.T.R. 62, the issue was whether it was open to the visa officer to consider whether the applicant fell within the definition in subsection 2(1) before assessing the applicant under paragraph 8(1)(b) and subsection 8(4). Lutfy, J. (as he then was) determined that there was no substantive difference between the first test of the regulatory definition and the test in subsection 8(4). He concluded that whether the assessment is made initially in accordance with the definition or later, in the context of subsection 8(4), the result will be the same. The applicant's efforts to distinguish Pourkazemi, supra, on the premise that the logic does not apply when the visa officer refuses an applicant on the basis of failing to pass the "significant contribution" portion of the test, does not assist him because Mr. Zheng did not succeed in relation to either of the tests in the definition. The refusal letter states:
. . . in my opinion, your intended business in Canada would not make a significant contribution to the economy. Furthermore, based on all the information you have provided, I am not satisfied that you have sufficient business expertise nor the ability to become successfully established in your proposed business venture.
[23] The other difficulty confronting the applicant is that he did not obtain sufficient units of assessment. Thus, it cannot be said that he is an applicant who failed to qualify for immigration having obtained sufficient units of assessment but having failed to meet the requirements of the definition. I am not persuaded that the visa officer erred as alleged.
[24] Regarding the exercise of positive discretion, the applicant argues that his submission letter implicitly requested that he be afforded a subsection 11(3) review and that the visa officer erred in failing to consider exercising her discretion. He additionally submits that the Immigration Manual expressly contemplates considering application of subsection 11(3) in self-employed cases.
[25] Subsection 11(3) of the Immigration Regulations provides the visa officer with discretion to either issue or deny a visa in circumstances where the officer concludes, for reasons subject to written submission to, and approval by, a senior immigration officer, that the number of units of assessment awarded do not reflect the chances of the applicant becoming successfully established in Canada.
[26] In Chen v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 78, Evans, J. (as he then was) stated at page 83:
. . . it is not a function of this court to determine whether the visa officer has given sufficient weight to this consideration. This is a matter for the exercise of the statutory discretion entrusted to the visa officer in light of the complete file, including how close the applicant is to obtaining the normally required number of units. Only if the visa officer's exercise of discretion can be characterized as arbitrary or capricious or otherwise unreasonable should the court intervene . . .
Without trespassing on the discretion conferred upon visa officers by s. 11(3), I would have thought that the discretion in question is residual in nature, and should be decisive only in cases that present unusual facts, or where the applicant has come close to obtaining [the required] units of assessment. (Emphasis added)
[27] Chen has been applied in several cases: Zeng v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1486 (T.D.); Lin v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1272, [2001] F.C.J. No. 1738 and Gao v. Canada (Minister of Citizenship and Immigration), 2002 FCT 43, [2002] F.C.J. No. 48.
[28] The discretion provided for in subsection 11(3) is exceptional and an applicant must request that the visa officer exercise discretion: Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316. There may exist facts, evident on the face of the application that reveal unusual circumstances, which should prompt the visa officer to consider whether to exercise positive discretion: Savvateev v. Canada (Minister of Citizenship and Immigration) (1999) 170 F.T.R. 317; Norambuena v. Canada (Minister of Citizenship and Immigration) (2002) 21 Imm. L.R. (3d) 55 (F.C.T.D.).
[29] The applicant has failed to persuade me that this application discloses facts, evident on its face, that reveal unusual circumstances such that the Court should return the matter with a direction that the visa officer consider whether or not to exercise her discretion. Insofar as the applicant's argument regarding the Immigration Manual is concerned, the applicant refers specifically to the section of the manual which indicates the existence of subsection 11(3). That portion is followed by the following relevant passage:
An applicant must satisfy you that he or she has the ability to establish a business in Canada. If the applicant is in your opinion able to do this without experience, it would be appropriate to exercise discretion pursuant to R11(3).
[30] The primary basis for the visa officer's decision in this matter was that the applicant did not have the ability to establish a business in Canada. Thus, while the manual contemplates the exercise of positive discretion (as provided in the Regulations), it is in circumstances where the visa officer is satisfied of the person's ability to establish a business in Canada notwithstanding a lack of experience. That is not the situation here. Indeed, it is quite the contrary.
[31] The argument with respect to the definition being ultra vires is based on four further submissions: the definition refers to those opening a business whereas subsection 8(4) refers to success in an "occupation or business"; subsection 8(4) calls for an assessment only of the applicant whereas the definition imports the additional assessment of the proposed endeavour, and the definition requires self-employed applicants' endeavours to make an undefined "significant contribution" whereas subsection 8(4) does not. The applicant argues that logic and consistency dictate that assessments of self-employed applicants should be restricted to whether they have the means and ability to be self-supporting in their endeavours in Canada at an unknown date "precisely as subsections 8(1) and 8(4) of the Regulations require and in harmony with subsection 6(1) of the Act" (the latter being the enunciation of the general principle with respect to the admissibility of immigrants). It is argued that the words "significant contribution" contained in the definition must, per force, be ultra vires subsection 6(1).
[32] It appears to me that the first three submissions of the applicant's argument with respect to the ultra vires issue constitute a camouflaged attempt to repeat the argument analysed in paragraph (e) earlier. Insofar as the definition in subsection 2(1) is concerned, paragraph 114(1)(a) of the Act authorizes the Governor in Council to make regulations "prescribing classes of immigrants and providing for the establishment, and the application to such classes, of selection standards based on such factors as ... business experience and other personal attributes and attainments..." "Self-employed persons" constitute a class of immigrants and, in my view, it is inconceivable that having prescribed the class, that it would be ultra vires to define it. Moreover, the definition of "self-employed person" prescribes a class of immigrants based upon the personal attribute of possessing the ability to establish or purchase a business which will provide an employment opportunity to the applicant and which will make a significant contribution to the economy. Regarding the applicant's argument that importing the "significant contribution" requirement into the definition is ultra vires, I consider Chan v. Canada (Minister of Employment and Immigration) (1994), 79 F.T.R. 263 to be dispositive. Although decided in the context of "entrepreneurs", the reasoning and analysis of Rothstein, J. (as he then was) is equally applicable to "self-employed persons".
(f) failure to properly assess the applicant in accordance with the definition of "self-employed person"
[33] The applicant's final argument is an alternative one. He submits that the visa officer did not properly apply the "self-employed person" definition in that she focussed on a lack of prior business experience. Relying on Yung v. Canada (Minister of Citizenship and Immigration) (2000), 5 Imm. L.R. (3d) 314 (F.C.T.D.), the applicant argues that prior business experience is not required to qualify as a "self-employed person". Additionally, he argues that there is no evidence in the CAIPS notes, the refusal letter or the visa officer's affidavit to substantiate that the visa officer raised or analysed the issue of whether the proposed business would make a "significant contribution". The applicant relies on Ni v. Canada (Minister of Citizenship and Immigration) (2001) 200 F.T.R. 151 as authority for the proposition that it is incumbent upon a visa officer to separate the reasons for each of the two tests contained in the definition.
[34] The applicant's interpretation of the authorities cited is misguided. Yung, supra, does not stand for the proposition articulated by the applicant. The passage relied upon, in its entirety, reads as follows:
While it is appropriate for a visa officer to consider the applicant's previous past experience in operating a business, a visa officer errs if undue emphasis is placed on the applicant's lack of past experience.
[35] Similarly, Ni, supra, does not stand for the proposition stated by the applicant. There, O'Keefe, J. determined that the visa officer erred in applying irrelevant considerations to the first test of the definition, i.e., ability to establish a business in Canada. Because the visa officer had not provided distinct reasons for finding that the business would not contribute significantly to the economy, O'Keefe, J. was not able to determine whether or not the same irrelevant considerations had been applied to the second test.
[36] Here, as repeatedly stated in these reasons, the visa officer concluded that the applicant did not satisfy the requirements of the definition. Additionally, the visa officer conducted an assessment pursuant to subsection 8(1) of the Regulations. The applicant did not obtain sufficient units of assessment to qualify for immigration. This was, in large part, due to the fact that she was not satisfied that he had the ability to become successfully established in his proposed occupation or business venture in Canada and therefore did not obtain the 30 units of assessment as a self-employed person.
[37] The visa officer considered that the applicant had been a first grade chef since 1983 and had worked for two different restaurants in the United States. His duties included ordering food, planning menus, cooking and supervising staff. His management duties related to kitchen staff although in the absence of the owner, he would ensure the restaurant was clean, count the money in the cash register and call the Chinese wholesale company for supplies. He had never been involved in the financial aspects of any restaurant nor had he been involved in the management of a restaurant as a whole. He had neither owned nor managed a business in China or the United States. He had never been self-employed nor had he been involved in any business transactions. He was unable to provide any specific or concrete information with respect to the generic business proposal that he submitted.
[38] The visa officer's conclusions were premised on the above-noted considerations as well as her finding that the business proposal of a fast food outlet "China on the Run" did not seem a viable business. After advising the applicant of her concerns at the interview, she provided, in the refusal letter, the following reasons:
After a careful and thorough review of your application, and as discussed with you at your interview, I regret to inform you that your application is refused since, in my opinion, your intended business in Canada would not make a significant contribution to the economy nor to the cultural or artistic life of Canada. Furthermore, based on all the information you have provided, I am not satisfied that you have sufficient business expertise nor the ability to be able to become successfully established in your proposed business venture.
These reasons were followed by a summary of the various factors considered by the visa officer in support of her conclusion.
[39] It was reasonably open to the visa officer to conclude that Mr. Zheng did not have the ability to establish a business in Canada and to conclude that there was nothing before her that would enable her to conclude that he would, through his business, make a significant contribution to the economy, the cultural or the artistic life in Canada.
[40] The applicant has established only one error by the visa officer. I have determined that the identified error is not material to the outcome. Therefore, the application for judicial review is dismissed. Since the applicant has not been successful, he is not entitled to costs.
[41] Counsel did not suggest a question for certification. This case raises no serious question of general importance.
« Carolyn A. Layden-Stevenson »
Judge
Ottawa, Ontario
October 25, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3898-00
STYLE OF CAUSE: MINGLIANG ZHENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 10, 2002
REASONS FOR ORDER BY: Layden-Stevenson J.
DATED: October 25, 2002
APPEARANCES BY: Mr. Timothy E. Leahy
For the Applicant
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD: Mr. Timothy E. Leahy
Barrister & Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
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