Date: 20030121
Docket: IMM-5173-00
BETWEEN:
RONGGAN ZHENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of, and, inter alia, an order setting aside the decision of a visa officer at the Canadian Consulate General in New York, dated August 29, 2000, which rejected the applicant's application for permanent residence in Canada as a self-employed chef (NOC 6241.3). Orders for other forms of relief, including costs, were also sought by the applicant.
[2] Mr. Zheng, the applicant, is a citizen of the Peoples Republic of China. At the time of his application he had been working since 1996 in the United States as a chef, earning $2,500 per month. In September 1999 he had in excess of $18,300 on deposit in the United States and 480,000 yen in China, figures which by July 2000 were shown by bank documents to be more than $32,700 in the U.S., and by local assessors some 380,000 yen in China.
[3] The visa officer assessed the various factors to be considered for independent applicants for permanent residence, pursuant to s. 8 and Schedule I of the Regulations. She assigned a total of 54 units to the applicant, less than the minimum 70 units required for a visa, including 4 units for experience as a chef in China and in the United States, 2 units for personal suitability, and 0 units, of a possible 30 available for an applicant who establishes that he or she is likely to succeed as a self-employed immigrant in Canada.
[4] The applicant submits the visa officer erred in a number of ways in reaching her decision. On that basis he seeks a variety of orders for relief, including an order setting aside the officer's decision, orders in the nature of mandamus and a declaration setting terms for any reconsideration of the application for permanent residence, and an order for costs. I turn to the validity of the decision in question, the nature of any appropriate relief and the question of costs.
The validity of the decision
[5] In my opinion this application should be allowed and the decision in question should be set aside for the following reasons.
[6] In her decision letter to the applicant the visa officer said, in part:
"I have not awarded you the 30 unit bonus because you were unable to demonstrate that you meet the definition of a Self-Employed Person. According to Canada's Immigration Regulations,1978, a Self-Employed immigrant is a "person who intends and has the ability to establish or purchase a business in Canada that will create employment opportunity for himself or herself and will make a significant contribution to the economy or the cultural or artistic life of Canada". At interview, you stated that you intend to work in Canada as a self employed chef and although you indicate experience in this occupation, you were unable to show how you intend to operate a business in Canada successfully. You were unable to explain how you would compete successfully in already saturated market and how you will compete within than [sic] established market. You were unable to explain how this business in Canada would be of a significant economic benefit to Canada given the number of restaurants in the area you intend to establish in Canada is substantial.
You claimed at interview that you have more than $32k USD in the United States and a certificate of deposit in your country valued at $68k Cdn. You did not provide sufficient proof to substantiate your claim that you are the sole proprietor of these funds. I note, for example, that by your own account your annual earnings do not exceed more than $30k per year and yet you have more than that in your account in the U.S. Consequently, I was not satisfied you are the sole proprietor of the funds you claim you have and intend to bring with you to Canada to successfully establish your business."
[7] This decision is based on the officer's assessment that the applicant did not demonstrate "ability to purchase or establish a business in Canada that...will make a significant contribution to the economy or the cultural or artistic life of Canada" because:
1) he was unable to show how he intended to operate a business in Canada successfully competing in a market which the officer, admittedly without any detailed knowledge of the market, assumed was "already saturated";
2) he was not able to explain how this business would be of significant economic benefit to Canada, given the substantial "number of restaurants in the area you intend to establish" (i.e. 1000 restaurants of all types in Vancouver);
The perceptions of the market upon which the officer based these assessments were not disclosed to the applicant, yet they were relied upon as if the applicant could not appreciate them or contest them.
3) the officer was not satisfied that Mr. Zheng was "the sole proprietor of the funds you claim you have", because, without raising her concerns about his ability to accumulate savings in the United States, she assumed he could not establish the funds held there in his name were in fact his, particularly the increase in funds from September 1999 to July 2000. Moreover, she ignored other funds claimed to be his which were located in China. This was done without alerting the applicant to her reservations which contradicted the evidence that he presented about his resources.
4) the officer awarded two units for personal suitability, said in the letter of decision to be assessed on "adaptability, initiative, motivation and resourcefulness". In her affidavit the visa officer adds to these qualities an "ability of the Applicant to become successfully established in Canada in his intended occupation", that is, a "self-employed chef". That is not a classification separately included in the National Occupation Classification (NOC), which includes a classification "6241 Chefs". His work as a chef in China and in the United States was accepted and rated at four units for experience, but he was not considered to qualify as a "self-employed chef". In my opinion, the conclusion appears based most substantially on the officer's assessment of the applicant's ability to become self-employed in Canada. This confuses the assessment process as provided under the Act, a process described by Madam Justice Tremblay-Lamer in Jing-Hui Cao v. M.C.I. (IMM-6636-98, 4 July 2000 (F.C.T.D.)), as follows:
[21] Pursuant to the Immigration Regulations, applications under the self-employed category involve a two-stage analysis. Applicants are assessed in accordance with paragraph 8(1)(b) and sub-section 8(4) of the Regulations and must also satisfy the regulatory definition provided at subsection 2(1) which describes a "self-employed person" 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 of the cultural or artistic life of Canada".
[22] Paragraph 8(1)(b) of the Regulations directs the visa officer to consider the various factors listed in Column 1 of Schedule I, with the exception of the "arranged employment" factor. Whereas subsection 8(4) of the Regulations confers upon the visa officer a discretionary power to award an applicant an additional 30 units of assessment if, in the opinion of the officer, the applicant will be able to become successfully established in his occupation or business.
[8] I recognize that personal qualities may have an important bearing on an applicant's ability to be self-employed in Canada, as defined in the Act. But here no assessment of personal qualities that led to Mr. Zheng's becoming established in the U.S. appears to have been made, and "personal suitability" was assessed in the main by the officer's judgment concerning his potential for self-employment, a separate factor to be assessed in accord with s-s. 8(4) of the Regulations. The officer assessed no units for the factor for self-employment but also appears to rely on the same assessment for determining the applicant's personal suitability.
[9] In my opinion the errors of the visa officer in assessing the applicant warrant intervention of this Court in ordering that the decision in question be set aside.
Appropriate Relief
[10] As earlier noted in written submissions the applicant also seeks relief by orders of mandamus and a declaration concerning the manner in which reconsideration of the applicant's application should proceed, including orders or directions:
- that the respondent either approve a visa for Mr. Zheng or bear all reasonable costs, including counsel's for any further interview;
- that any further interview of the applicant be recorded or counsel be permitted to attend with him;
- that visa officers deal with applications like those of the applicant in a court directed manner;
- that the respondent conduct a bona fide R.11(3) review, that is, to exercise positive discretion in favour of Mr. Zheng's application, or issue an immigrant visa, within four months.
[11] These forms of relief are inappropriate in my opinion. The Court cannot order the respondent to exercise statutory authority vested in the Minister in a particular manner or time, not provided by statute or the general law, or even order that any discretionary authority of the Minister's be exercised. Whether or not to consider the exercise of discretion, like that under s-s. 11(3) of the Regulations, is a matter within the exclusive authority of the Minister or his delegate.
[12] The only appropriate relief is an order setting aside the decision here in issue and referring the application of Mr. Zheng back for reconsideration by a different visa officer.
Costs
[13] The applicant seeks costs in the amount of legal fees of $6,600. plus examination expenses. It is urged that special reasons warrant costs in this case, as required by Rule 22 of the Federal Court Immigration Rules. Those special reasons are said to be payment of "a double non-refundable fee" to attend the immigrant-visa interview, the erroneous assessment of the applicant by improperly disallowing or ignoring his financial assets, failing to properly assess him in accord with the Act and Regulations, and failing in a duty to consider the exercise of positive discretion in accord with s. 11(3) of the Regulations. As I have noted the last of these is a discretionary authority vested exclusively in the Minister.
[14] While each of the other alleged failings may provide a basis for setting aside a decision, in my opinion they do not, individually or collectively, constitute special reasons within Rule 22 of the Immigration Rules, for an award of costs, in the absence of any finding of bad faith on the part of the respondent or his representative.
Conclusion
[15] For the reasons set out, the application for judicial review is allowed. The application of Mr. Zheng is referred for reconsideration by a different immigration officer.
[16] Neither party suggested a question for consideration pursuant to s. 83(1) of the Immigration Act, as it then was (now s-s. 74(d) of the Immigration and Refugee Protection Act). No question is certified.
"W. Andrew MacKay"
J.F.C.C.
Ottawa, Ontario
January 21, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5173-00
STYLE OF CAUSE: RONGGAN ZHENG v. M.C.I.
PLACE OF HEARING: TORONTO
DATE OF HEARING: MAY 14,2002
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE MACKAY
APPEARANCES:
Mr. Timothy Leahy FOR APPLICANT
Mr. Stephen Jarvis FOR RESPONDENT
SOLICITORS OF RECORD:
Timothy Leahy FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General
of Canada