Oh v. Canada (Minister of Citizenship and Immigration), docket IMM-4931-97

Date: 19990331

Docket: IMM-4931-97

BETWEEN:

     KYUNG OH

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

BLAIS J.

[1]          This is an application for judicial review of a decision dated October 20, 1997, of Susan Dragan, Visa Officer, Canadian Embassy, Seoul, South Korea, refusing the applicant's application for permanent residence in Canada as a "self-employed person".

FACTS

[2]          The applicant's application for permanent residence to Canada was submitted in March 1996 under the self-employed category. The applicant was interviewed by visa officer Susan Dragan on October 20, 1997 in Seoul, Korea.

[3]          The applicant indicated in her application that she has been self-employed as an artist in Korea since 1990 and intended to establish a business in Canada selling her paintings.

[4]          In the covering letter of the application dated February 29, 1996, it was stated that the applicant had sold more than 200 paintings since 1990, generating average annual revenues of $25,000.00 (CND).

VISA OFFICER DECISION

[5]          In a letter dated October 20, 1997 the visa officer wrote:

I have now completed my assessment of your application, and regret to inform you that you do not meet the requirements for immigration to Canada in the self-employed category.

According to your application form, you have been a self-employed artist since 1990. However, you have admitted at interview that, apart from the sale of three pieces of art amounting to KW1.5 million (approximately C$2,269) over two years, you have no proof of income or your ability to support yourself from self-employed activity as an artist. You have, therefore failed to prove that you would be able to make a significant contribution to the economy or the cultural or artistic life of Canada through your self-employment.

There is no other occupation apparent on your application in which you are qualified and experienced, and under which your application would be successful.

APPLICANT'S POSITION

[6]          The applicant"s counsel submits five issues to be determined.

A.      Did the visa officer err in law by not complying with subsections 2.03 (1) and (2) in not reassessing the applicant in accordance with the applicable factors set out in schedule I as that schedule read on May 1, 1997?

    

[7]          Subsections 2.03(1) and (2) read:

2.03 (1) For the purpose of an assessment by a visa officer under section 8, in respect of an application for a visa that was made under section 9 of the Act before May 1, 1997 and was still pending on that date, the applicable factors set out in Schedule I, as that Schedule read immediately before May 1, 1997, shall apply. 2.03(2) (2) If an application for a visa referred to in subsection (1) is refused, the visa officer shall reassess the applicant in accordance with the applicable factors set out in Schedule I, as that Schedule read on May 1, 1997. SOR/97-242, s. 2.

2.03 (1) L'appréciation par l'agent des visas aux termes de l'article 8, dans le cadre d'une demande de visa pendante au 1er mai 1997 qui a été présentée avant cette date en vertu de l'article 9 de la Loi, se fait suivant les facteurs applicables prévus à l'annexe I dans sa version antérieure au 1er mai 1997. 2.03(2) (2) Lorsque la demande visée au paragraphe (1) est refusée, l'agent des visas apprécie à nouveau le demandeur suivant les facteurs applicables prévus à l'annexe I dans sa version du 1er mai 1997. DORS/97-242, art. 2.

[8]          The applicant submits that she was assessed under the CCDO code pursuant to subsection 2.03(1) and the application was refused.

[9]          Pursuant to subsection 2.03(2) the visa officer had the obligation to reassess the applicant under the NOC and that was not done by the visa officer.

B.      Did the visa officer err in law by assessing the applicant under the definition of a self-employed person where the Immigration Regulations drive a visa officer to bypass the definition of self-employed after the intention to become self-employed is established?

[10]          The applicant submits that the selection criteria in the Regulations drives the visa officer to bypass the definition of self-employed to examine only whether or not there is an intent, after which the next step is to make the assessment under subsections 8(1) and 8(4).

[11]          The applicant submits that subsection 8(4) requires a mandatory assessment for all those who contemplate, by intention, self-employment in Canada.

[12]          The visa officer in this case did not question the bona fides of the applicant"s intention to be self-employed.

[13]          It is submitted that the visa officer made an error in referring only to the definition in subsection 2(1) of the Immigration Regulations.

C.      Is self-generation a ground to reject the applicant"s list of works, as such documents are self-generated?

[14]          The applicant provided some evidence of her sales and this, along with the list, should not have been excluded as evidence. The visa officer was seeking proof beyond a reasonable doubt. There is no rule nor law in the Immigration Act and Regulations that requires verifiable proof before a visa officer can be satisfied.

[15]          The applicant submits that the visa officer should have considered this evidence and should have accepted the list of works as all documents of that nature as self-generated.

D.      Did the visa officer breach her duty of fairness in determining that the applicant did not have the ability to be self-employed by only looking backwards and not looking forwards?

[16]          The visa officer was fixated on the lack of documentation and was therefore not satisfied with the applicant"s previous history of being a self-employed artist or a self-employed art teacher.

[17]          The jurisprudence in Ho and Li Yang state that the analysis of the Regulations requires consideration of three questions:

1)      Is the applicant an accomplished [artist]?

2)      Can she teach?

3)      Can she be self-employed as a teacher?

     Ho v. M.E.I. (1989), 8 Imm.L.R. (2d) 38

     Li Yang v. M.E.I. (1989), 8 Imm.L.R. (2d) 48

E.      Is the visa officer assessment of 3 units for personal suitability perverse?

[18]          It is submitted that the visa officer"s notion that the applicant was not adaptable because "there was no evidence of career, no evidence of significant moves" is perverse.

[19]          It is submitted that the visa officer did not give an opportunity to the applicant to disabuse her of her opinion that the applicant lacked adaptability, initiative, resourcefulness, and motivation as it would have been "a moot point".

[20]          It is submitted that this is not a moot point as the visa officer"s negative impression of the applicant guided the whole interview.

[21]          It is submitted that the applicant did not have a fair assessment as the applicant did not know ahead of time what the visa officer wanted in terms of documents and the visa officer formed her opinion based on this lack of documentation.

RESPONDENT'S POSITION

A.      Did the visa officer err in law by not complying with subsections 2.03(1) and (2) in not reassessing the applicant in accordance with the applicable factors set out in schedule I as that schedule read on May 1, 1997?

[22]          It is submitted that the fact that the applicant was not assessed under the NOC does not really matter because the applicant did not meet the definition of a self-employed pursuant to section 2 of the Regulations (definition). It would have been useless to make an assessment under the NOC.

B.      Did the visa officer err in law by assessing the applicant under the definition of a self-employed person where the Immigration Regulations drive a visa officer to bypass the definition of self-employed after the intention to become self-employed is established?

[23]          The respondent submits that a visa officer cannot "bypass" any of the relevant regulatory criteria contained in the definition of "self employed person" for purposes of determining whether an applicant is awarded 30 bonus points pursuant to subsection 8(4) of the Regulations .

[24]          It is submitted that the applicant"s application to enter Canada as a self-employed person gave rise to a discretionary decision on the part of the visa officer which was required to be made on the basis of the specified regulatory criteria in the definition of "self-employed person".

[25]          The applicant"s "ability" was a mandatory criterion which the visa officer was required to consider. The visa officer was not satisfied that the applicant had the requisite ability to establish a successful business in Canada and obviously, therefore, quite properly did not award the 30 bonus points to be allowed in the self-employed category.

C.      Is self-generation a ground to reject the applicant"s list of works, as such documents are self-generated?

[26]          It is submitted that the weight to be accorded to the applicant"s list of works was a question of fact to be determined by the visa officer.

[27]          It is submitted that the visa officer gave clear reasons for the weight given to the documents provided by the applicant.

[28]          The applicant was also given every opportunity to respond to the visa officer"s concerns with respect to the insufficiency of the documentation and to better her position by providing objective, verifiable proof of her claimed business experience.

D.      Did the visa officer breach her duty of fairness in determining that the applicant did not have the ability to be self-employed by only looking backwards and not looking forwards?

[29]          It is submitted that the facts in the present case bear no relation to those in Ho and Yang, but closely resemble those in Huang Ying and Gao Bai Nian v. M.C.I. (F.C.T.D., October 15, 1997, IMM-1508-96). As in the case at bar, in that case, one of the applicants sought to enter Canada as a self-employed artist. Jerome, A.C.J. rephrased the questions he posed in Yang, of which the respondent submits also suit the situation in the case at bar:

1)      Is the applicant an accomplished artist?

2)      Can the applicant establish a presence in Canada and sell her paintings?

3)      Can the applicant be self-employed as an artist?

[30]          Jerome A.C.J."s conclusion in that case may equally be applied to the applicant here. While the applicant may satisfy the first question, it is not evidence that she has any experience or training which would permit a positive response to the second question.

[31]          As a result, it is impossible to evaluate her ability to be self-employed, and a negative response must be recorded for the third question.

[32]          It is submitted that it is clear from the record before this Court that the visa officer considered those issues when reviewing the applicant"s application and that she did not misinterpret the definition of "self-employed person".

E.      Is the visa officer assessment of 3 units for personal suitability perverse?

[33]          It is submitted that in light of the visa officer"s conclusion that the applicant did not meet the definition of "self-employed person" and the fact that there is presently no demand in Canada for the occupations of artist and art teacher, this issue is moot.

[34]          It is also submitted that the visa officer is vested with a discretion to assess personal suitability based on an applicant"s adaptability, motivation, initiative and resourcefulness as demonstrated in the interview. The applicant is essentially asking this Court to substitute a different award of points for that of the visa officer"s.

ANALYSIS

[35]          Regarding the question raised by the applicant, and, by the way, only at the hearing, of the obligation for the visa officer to reassess the applicant in accordance with the NOC when the applicant has failed to meet the factors set out in Schedule I under subsection 2.03(2) when an application is refused under subsection 2.03(1), it seems that the visa officer has not complied with subsection 2.03(2) but it is clear that that does not make any difference in this particular case given that a decision not to consider the applicant as a self-employed person is an absolute bar.

[36]          Regarding the argument of counsel for the applicant that the Immigration Regulations dictate a visa officer to bypass the definition of self-employed after the intention to become self-employed is established, I disagree with that position.

[37]          My understanding is that the visa officer has to satisfy himself that the applicant meets the definition of a self-employed person before he proceeds to an assessment.

[38]          In this case, the visa officer was not convinced that the applicant had the ability to establish a business in Canada and therefore, did not award the 30 bonus points to be allowed in the self-employed category.

[39]          I refer the parties to the decision of Honourable Justice Lutfy, IMM-4965-97:

Counsel for the applicant acknowledges that there is no substantive difference between the first test of the regulatory definition (does the applicant have the ability to establish the intended business in Canada?) and the one in subsection 8(4). It matters little, it seems to me, if that assessment is made initially, as this visa officer did when she considered the first test in the definition of self-employed person, or later in the process, as urged by the applicant, in the context of subsection 8(4). The result will be the same.

[40]          Further on, Justice Lutfy also says:

In summary, the words "intends to be" in paragraph 8(1)(b) cannot have the meaning and impact urged by the applicant. The immigration must demonstrate, prior to landing, the intention and the ability to become self-employed in Canada in accordance with the first test in the regulatory definition and subsection 8(4). The immigration intending to become self-employed in Canada is also screened in accordance with those Schedule I criteria specified in paragraph 8(1)(b). This is an intelligible explanation for the different wording in paragraphs (b) and (c) of subsection 8(1) and one which does not require setting aside, for no apparent reason, the second or significant contribution test in the regulatory definition.

[41]          Regarding the list of works submitted by the applicant, I agree with counsel for respondent that the weight to be accorded to the list was a question of fact to be determined by the visa officer which cannot be re-evaluated by this Court.

[42]          Regarding the argument of the applicant that the visa officer did not consider the evidence that was submitted at the interview by the applicant, this is contradicted by the visa officer's affidavit and by a cross-examination of the visa officer.

[43]          The applicant was given an opportunity to disabuse the negative impression about her and was also given an opportunity to present any further evidence relating to her artistic ability or ability to be self-employed as an artist in Canada. I am referring, for that, to pages 55 and 72 of the transcript of the cross-examination of the visa officer.

[44]          The applicant also suggests that during the interview the visa officer insisted, to a specific point, to get some independent proof of earnings by the applicant over the years before the application, and has committed an error in not asking the applicant to gather that information before the interview.

[45]          I also reject that suggestion and, in my opinion, the applicant was fully aware that she had to bring all evidence for the interview, referring to the letter by her counsel at the time.

[46]          I refer the parties to the decision by Justice Teitelbaum:

In a recent case, Ashgar v. Canada (supra), the Federal Court considered whether a visa officer breached his duty to act fairly by failing to give the applicant an opportunity to adduce evidence regarding his qualifications. Justice Muldoon reviewed the case law and found that the applicant has the onus to satisfy the visa officer that he or she met the requirements set out in the Act, and that the visa officer is under no duty to request that evidence of further evidence be produced: Prasad v. M.E.I., [1996] F.C.J. 453; Hajariwala v. M.E.I., [1989] 2 F.C. 79, and Wai v. M.C.I., [1996] F.C.J. 1387. Justice Muldoon went on to consider the alleged breach of fairness and dismissed the allegations as follows:

It is still not clear in what circumstances procedural fairness requires that the visa officer apprise the applicant of his concerns. However, from the authorities cited above one may conclude that this duty does not arise merely because the visa officer has not been convinced, after weighing the evidence, that the application is well founded. The visa officer's task is precisely to weigh the evidence submitted by the applicant. In the Court's words, in light of the onus that is on the applicant to produce evidence, it is not apparent that the visa officer should be compelled to give him a "running-score" at every step of the proceeding [Covrig v. M.C.I., (1995), 104 F.T.R. 41].

(Emphasis added)

[47]          Regarding the appropriate questions to be addressed by the visa officer when considering a self-employed artist, I also agree with counsel for respondent that the questions rephrased in Huang Ying and Gao Bai Nian v. M.C.I. (F.C.T.D., October 15, 1997, IMM-1508-96) reflect more accurately the applicant"s situation. Therefore, the negative conclusion of the visa officer regarding the second question "Can the applicant establish a presence in Canada and sell her paintings?" is supported by the lack of evidence to prove otherwise and is not unreasonable.

[48]          Considering that this evaluation by the visa officer is a discretionary decision, the standard of review dictates that this Court should not intervene unless the decision of the visa officer is manifestly unreasonable, which is not the conclusion of this Court.

[49]          The standard review of such a decision was set out by the Federal Court of Appeal in Chiu Chee To, (May 22, 1996), Toronto A-172-93 (F.C.A.), where Mr. Justice Stone, for the Court, stated:

Here, the immigration officer was not satisfied that the appellant had either the

business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In Maple Lodge Farms [1982] 2 S.C.R. 2">Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court:

It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, were required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

[50]          Therefore for the foregoing reasons, this application for judicial review shall be dismissed.

[51]          Counsel for the applicant has suggested the following question for certification: Is a self-employed applicant to be assessed under section 2(1) of the Immigration Regulations defining a self-employment person? If so, does this means section 2(1) of the Immigration Regulations is a selection standard?

[52]          Counsel for the respondent suggest that the facts and issues in this case do not give rise to any serious question, and particularly that the question suggested by the applicant is of no significance or purpose.

[53]          The Honourable Mr. Justice Lutfy in Shahram Pourkazemi v. MC.I. (F.C.T.D.) November 17, 1998, IMM-4965-97) has already answered to the applicant"s question.

[54]      In my opinion, this is not a serious question of general importance, therefore, no question will be certified.

                         Pierre Blais

                         Judge

OTTAWA, ONTARIO

March 31, 1999