Date: 20030113
Docket: IMM-2027-01
Neutral citation: 2003 FCT 20
Toronto, Ontario, Monday the 13th day of January, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
BIAN ZHENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
- Mr. Bian Zheng (the "Applicant") seeks judicial review of the decision of visa officer Nell Stewart (the "Visa Officer"), set out in a letter dated March 16, 2001. In her decision, the Visa Officer refused the Applicant's application for permanent residence in Canada.
[2] The Applicant, a citizen of the People's Republic of China, is a hairdresser. He established a hair and beauty salon in 1989 and operated it up to the time of his interview in 2001. The Applicant claimed to have extensive experience as a hairdresser, and provided evidence that he had won competitions in the Province of Anhui.
[3] The Applicant attended an interview at the Canadian Consulate General in Hong Kong on March 13, 2001. The Visa Officer questioned him about his proposed business venture and his plan to implement it in Canada.
[4] The Visa Officer refused the application in a letter dated March 16, 2001. She stated in this letter that she had refused the application because she was not satisfied that the Applicant had the intention and ability to establish or purchase a business in Canada that would create an employment opportunity for himself. In her opinion, the Applicant had little knowledge of the proposed venture in Canada and had failed to show what steps he had taken or planned to take in establishing or purchasing a business in Canada.
[5] The Applicant argues that the Visa Officer wrongfully fettered her discretion by importing her personal opinions into the statutory selection criteria. Relying on Cheng v. Canada (Minister of Citizenship and Immigration) (1994), 25 Imm. L.R. (2d) 162 (F.C.T.D.), the Applicant submits that imposing additional requests into statutory definitions is an error of law. The Applicant says that the Visa Officer improperly required him to show that he had a "concrete plan" or agreement in place concerning his proposed business in Canada as a prerequisite for approving his application.
[6] The Applicant further submits that the Visa Officer misinterpreted the Immigration Regulations, 1978, SOR/78-172, as amended (the "Regulations") by only considering him under the definition of "self-employed person" in section 2(1) and not assessing him pursuant to section 8(1)(b). According to the Applicant, this approach imposes a more restrictive standard on self-employed applicants.
[7] The Applicant also argues that the Visa Officer erroneously focussed on the definition of "self-employed person" to the exclusion of considering the criteria of section 8(4). That section of the Regulations requires that a prospective immigrant be able to become "successfully established in his occupation or business in Canada" in order to obtain 30 units of assessment as a self-employed person.
[8] The Applicant says that the Visa Officer did not consider his ability to support himself as a hairdresser by working out of existing salons, rather than opening his own business. In this regard, he relies on Mui v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 59 (F.C.T.D.).
[9] The Respondent, on the other hand, submits that the Visa Officer properly assessed the Applicant in the self-employed category. The Visa Officer was entitled to consider whether the Applicant had taken any steps to develop a plan for establishing a business in Canada.
[10] As well, the Respondent argues that the Visa Officer gave clear reasons in her refusal letter and in the Computer Assisted Input Program System ("CAIPS") notes for her conclusion that the Applicant did not meet the requirements of the self-employed definition. The CAIPS notes also show that the Applicant was assessed according to the factors in Schedule I as required by section 8(1)(b) of the Regulations.
[11] The Respondent further argues that the argument that the Visa Officer, by focussing on the regulatory definition of "self-employed person", erred in not assessing whether the Applicant could become self-supporting pursuant to sections 8(1) and 8(4) of the Regulations has been addressed and dismissed by this Court in Pourkazemi v. Canada (Minister of Citizenship and Immigration (1998), 161 F.T.R. 62, Oh v. Canada (Minister of Citizenship and Immigration, [1995] F.C.J. No. 435 (T.D.) (QL) and Lin v. Canada (Minister of Citizenship and Immigration, [2000] F.C.J. No. 990 (T.D.) (QL).
ANALYSIS
[12] The Applicant applied as a self-employed person. That term is defined in section 2(1) of the Regulations as follows:
| "self-employed person" means 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 or the cultural or artistic life of Canada; |
|
« travailleur autonome » s'entend d'un immigrant qui a l'intention et qui est en mesure d'établir ou d'acheter une entreprise au Canada, de façon à créer un emploi pour lui-même et à contribuer de manière significative à la vie économique, culturelle ou artistique du Canada. |
[13] Sections 8(1)(b) and 8(4) of the Regulations are relevant and provide as follows:
| 8(1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant ... (b) in the case of an immigrant who intends to be a self-employed person in Canada, on the basis of each of the factors listed in Column I of Schedule I, other than the factor set out in item 5 thereof; |
|
8(1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint :
... b) dans le cas d'un immigrant qui compte devenir un travailleur autonome au Canada, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, autre que le facteur visé à l'article 5 de cette annexe; |
| 8(4) Where a visa officer assesses an immigrant who intends to be a self-employed person in Canada, he shall, in addition to any other units of assessment awarded to that immigrant, award 30 units of assessment to the immigrant if, in the opinion of the visa officer, the immigrant will be able to become successfully established in his occupation or business in Canada. |
|
8(4) Lorsqu'un agent des visas apprécie un immigrant qui compte devenir un travailleur autonome au Canada, il doit, outre tout autre point d'appréciation accordé à l'immigrant, lui attribuer 30 points supplémentaires s'il est d'avis que l'immigrant sera en mesure d'exercer sa profession ou d'exploiter son entreprise avec succès au Canada. |
[14] This case does not involve consideration of the second part of the "self-employed person" definition, that is, whether a prospective immigrant will make a significant contribution to the economy or the cultural or artistic life of Canada. The Visa Officer's refusal was based on the Applicant's lack of intention and ability to establish or purchase a business in Canada that would create an employment opportunity for himself.
[15] In my opinion, the several arguments raised by the Applicant fail to demonstrate a reviewable error in the decision refusing the Applicant's application. The record shows that the Visa Officer properly applied the regulatory definition of "self-employed person" to the Applicant; she did not import her own criteria to the definition.
[16] The Visa Officer was entitled to question and examine the Applicant's proposed business arrangements since the Regulations provide that the 30 units for being a self-employed person were not available unless the Applicant could show that he met the definition. The Visa Officer concluded that the Applicant had not met the definition. Her conclusion is reasonably supported by the evidence.
[17] The Visa Officer addressed her mind to section 8(4) of the Regulations. According to the decision of Justice Lutfy, as he then was, in Pourkazemi, supra, the order in which a visa officer considers the definition of "self-employed person" and the successful establishment in an occupation or business in Canada, pursuant to section 8(4) is immaterial, since the result will be the same.
[18] The application for judicial review is dismissed. There is no question for certification arising from this application.
ORDER
The application for judicial review is dismissed. There is no question for certification.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2027-01
STYLE OF CAUSE: BIAN ZHENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, JANUARY 8, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: MONDAY, JANUARY 13, 2003
APPEARANCES BY: Mr. Timothy E. Leahy
For the Applicant
Ms. Lisa Hutt
For the Respondent
SOLICITORS OF RECORD: Mr. Timothy E. Leahy
Barrister & Solicitor
5734 Yonge Street
Suite 509
Toronto, Ontario
M2M 4E7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20020113
Docket: IMM-2027-01
BETWEEN:
BIAN ZHENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER