Lun v. Canada (Minister of Citizenship and Immigration), docket IMM-3872-96

Date: 19971209

Docket: IMM-3872-96

BETWEEN:

     ZHAO GUANG LUN

     (Applicant)

     - and -

     MINISTER OF CITIZENSHIP & IMMIGRATION

     (Respondent)

     REASONS FOR ORDER

     [Delivered from the Bench at Calgary, Alberta

     on Wednesday, September 17th, 1997 as edited]

CAMPBELL, J.

[1]      There are many factual and legal issues raised in this case, but a prime concern to me is the factual issues. I agree with the applicant's argument that there have been errors made in the findings of fact, and I find that they were made without regard for the material put before the decision maker.

[2]      I have a good body of evidence from which to understand what the decision maker thought in relation to the decision being made. I have the actual decision itself, which is in the form of a letter of rejection, and I have the decision maker"s affidavit, which is lengthy, and indeed which also considers some of the responses that Mr. Lun had made to the original rejection. I find that, taken together, these are the reasons for judgment, which on its face contain a number of errors of fact which cry out for relief. Accordingly, I think there has to be a rehearing of the question of whether Mr. Lun should be admitted as an entrepreneur.

[3]      As an over-riding consideration, I know that it is not for me to toy with decision making if it has been correctly done. The respondent has referred correctly to the case of Maple Lodge Farms, which sets out that my interference should only be in the situation where there is manifest error. I also know that I ought not to nitpick through a number of errors to come to a conclusion which, on the face of it, is generally adequate.

[4]      However, in coming to the conclusion I have, I intend to try to explain in some detail the serious factual errors that have been made in the context of an over- riding dominant scepticism displayed by Ms. Barr towards Mr. Lun. I am of the opinion that there was a negative predisposition here on the part of the decision maker which unfairly affected the result.

[5]      As a very experienced immigration officer, Ms. Barr has had a number of cases similar to Mr. Lun"s, and from what she has said, I conclude that she approached this case with a fair degree of scepticism. Unfortunately, I am of the opinion that this approach did not give Mr. Lun a reasonable opportunity to explain himself. Following are the points which I think are errors in the findings of fact as a result.

[6]      In paragraph 7 of her affidavit, Ms. Barr sets out that the applicant claimed to have taken some formal business training at Taishan Management School. Because Mr. Lun did not provide any evidence of his training, I see in this paragraph a negative inference that the statement is not true. I find this inference is unfair to him since there is no concrete evidence to support it.

[7]      In paragraph 9, I find another negative inference has been drawn from the statement that "moreover the figures provided by the applicant as interviewed, differed markedly from what he had stated in his February 5th, 1996 applicant's statement". Counsel agree that in fact there does not appear to be this discrepancy and that the figures Mr. Lun filed are basically what he said in his interview. I think that this statement is again evidence that Ms. Barr was unfairly distrustful of what Mr. Lun had to say.

[8]      In paragraph 11 of Ms. Barr"s affidavit, Mr. Lun is criticized for not contacting the Business Immigration Programs Unit in Alberta. I have not been pointed to any place in the evidence which required him to do so, or indeed, that he knew he would have been expected to do so. This failure to report, however, is a factual reason that Ms. Barr relies upon to say that Mr. Lun is not prepared to adequately immigrate to Canada. I think this is an error in that it is a conclusion unsupported by the evidence.

[9]      In paragraph 18(4) there are also problematic questions. The first is the issue or Ms. Barr picking a ballpark figure of $500,000 as sufficient to establish a capital intensive business against which she judged Mr. Lun's application. It has been well pointed out to me that this figure, firstly, is based on an erroneous finding because it is a British Columbia not an Alberta figure. The second point made is that there is no evidence to say whether Mr. Lun understood that he had to accomplish such an objective, and, therefore, he is being criticized for not coming up to a standard which underneath the surface was an expectation.

[10]      In that same paragraph, there is a series of statements which I find quite concerning because they show what I have already referred to as a predisposition based on Ms. Barr's own understanding of what is usual for people who come before her. She has negative opinions of applicants generally, and her opinion is that some claims are inflated, and some people do not tell the truth about their intentions in that they may say that they are going to sell a property but do not really intend to. And she says that generally she, and others in her position as well, put little weight on both the alleged value of property assets and gestures of willingness to sell property for capital. I find these are remarkably unfair statements because they do not deal with Mr. Lun as an individual. It is an opinion that is taken into the hearing by Ms. Barr against which Mr. Lun probably had no chance of success in somehow deflating or reducing.

[11]      The next concerns arise in paragraph 14(5) of Ms. Barr"s affidavit concerning the issue of Mr. Lun's brother. From the original decision letter, I know that Ms. Barr had a very limited opinion, in fact, a small opinion of his brother's ability. In her decision, Ms. Barr referred to Mr. Lun"s brother as a "kitchen helper". In her affidavit she tried to explain further what she meant by that statement, but I put more weight on the original statement than I do on anything that she said in paragraph 14(5) of the affidavit. There is no doubt that Ms. Barr formed an incorrect opinion. In fact, the evidence is that Mr. Lun"s brother is not a kitchen helper, but is a person who has had a number of job responsibilities. Indeed, Ms. Barr in her affidavit had to admit that he is cook. However, she also says in her affidavit that she doubts whether either the brother or Mr. Lun are "trained", as a cook. This is somewhat bothersome because, while I am not sure it makes any difference, she seems to put weight on the assertion. Again I think it is some evidence of impairing scepticism.

[12]      Another concern arises in paragraph 14(7) where Ms. Barr says that "I am not satisfied that another Chinese restaurant would significantly benefit the Calgary economy". I do not know where she got that evidence and there is no support in any of the material before me that says she knows that this is the truth. She does talk about the fact that she referred to the Alberta Provincial Government guidelines. I have looked at them. There is nothing in there to substantiate this finding. This is a serious erroneous finding of fact because what it is intended to say is that Mr. Lun's basic business proposition would not meet the entrepreneur requirements.

[13]      I find that all of these findings taken together do raise abundant concern about the fairness of this hearing, and indeed as I have already said, they are well over the hurdle of picking over details.

[14]      Consequently, this decision is set aside under s.18.1(3)(b) of the Federal Court Act on the basis of my conclusion described above that under s.18.1(4)(d) Ms. Barr made her decision without regard for the material before her. This matter is referred for rehearing to another Visa officer at a Visa office of the applicant's choice. It is agreed that there are no questions to certify.

[15]      Considering the seriousness of the errors made, I find that there are special reasons to award costs, and I do so under Column III, Tariff B of the Federal Court Rules.

                                                          Judge

OTTAWA, ONTARIO

December 9, 1997