Date: 20011218
Court File No.: IMM-1811-00
Neutral Citation: 2001 FCT 1403
Ottawa, Ontario, this 18th day of December, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
SHANCHAO XUE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, born in Changle, China, in 1959, has been since December of 1989 living in the United States operating his own restaurant. He applied for permanent residence in Canada in the self-employed category. He brings this application for judicial review of the decision of a visa officer made on March 6, 2000 refusing his application.
[2] The visa officer awarded the applicant zero units of assessment for experience and education respectively, and 3 units of assessment for personal suitability. The applicant was awarded a total of thirty eight (38) units of assessment, thirty two (32) short of the number required for a visa to issue.
[3] The visa officer, following an interview of the applicant, was not satisfied that the applicant would be able to become successfully established in his occupation or business in Canada and therefore did not award the 30 units of assessment as a self-employed person, as provided for in subsection 8(4) of the Immigration Regulations, 1978. In a letter dated March 6, 2000 refusing the application, the visa officer offered the following reasons for not awarding the said 30 units of assessment.
I do not see from the documents that you have provided and from what you indicated at your interview that you have any qualifications as a business person. You have been unable to substantiate the fact that you ever ran or had active participation in a successful business. You did not have any idea of the business transactions of the business where you said that you worked. You were unable to provide any proof that your proposal is a viable business that will provide employment for yourself, and be able to support yourself, your wife who is a housewife and your two children, whether accompanying you or not, and that you will establish successfully in Canada in your business venture. At interview, you had no supporting documents proving that you actually ran a profitable business. In my opinion, you do not have the in depth experience, the skills, the expertise nor the ability to be able to establish successfully as self-employed. Due to all this, I am not satisfied that you would be able to become successfully established in Canada in your proposed business venture.
[4] The determining issue in this judicial review is whether the visa officer erred in finding that the applicant had no qualifications as a business person which led the officer to conclude that the applicant was unable to successfully establish his business venture in Canada.
[5] The applicable standard of review for decisions of visa officers on application for permanent residence was reviewed by Madam Justice Reed of this Court in Hao v. Canada (The Minister of Citizenship and Immigration), [2000] F.C.J. No. 296. At paragraphs 6 and 7 of her reasons she stated:
[6] In the present case, there is no privative clause, and there is no requirement that leave be granted before a judicial review can proceed. There is a statutory right to judicial review, provided for by section 18.1 of the Federal Court Act. These factors tip the balance toward the unreasonableness simpliciter end of the scale.
[7] Visa officers have considerable expertise in assessing applicants. The decision-making is one that requires an assessment of the personal characteristics of individuals, and depends to a significant extend on a personal interview of the applicant. There is significant discretion given to visa officers, although that discretion is constrained by the existence of the points assessment system (see Zhao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 213, (IMM-3382-98, February 17, 2000) ).
[6] I endorse Justice Reed's analysis and adopt the reasonableness simpliciter standard for this judicial review.
[7] The applicant, while still in China, was employed as a clay worker and from July 1980 until February 1989 managed one clay factory and owned another. Upon moving to the United States, he became a cook at the Panda Restaurant in New Britain, Connecticut, the same restaurant he would purchase four and a half (4½) years later.
[8] The applicant sold the Panda Restaurant and moved to Oklahoma where he purchased the first of three more restaurants he would own, the last of which he claims he was still operating when he attended his interview on February 18, 2000.
[9] The applicant argues that the visa officer improperly dismissed the applicant's education qualifications; improperly held that the applicant was not qualified in his occupation; under-assessed his personal suitability and also argues that the officer's finding that the applicant has no business experience is perverse. The respondent contests each and every one of these arguments.
[10] I will deal firstly with the applicant's contention that the finding of the applicant having no business experience is perverse. It is important to note that subsection 8(1) of the Immigration Act, R.S.C. 1985, c. I-2, clearly sets the burden of proving that one's admission to Canada is not contrary to the Act or the Regulations, is on that person seeking admission to Canada. The applicant must prove that he comes within the definition of a "self-employed" person provided for in subsection 2(1) of the Immigration Regulations and establish that he has the ability to establish or purchase a business in Canada. A review of the evidence before the visa officer shows that the following documents were made available by the applicant to substantiate his ownership of the restaurant he operated in the U.S.
1. State of Connecticut, sales and use tax permit issued 04/26/96 - expiring 5/31/98, for the Panda Restaurant, Xue Shan C and Feng Hunay S.
2. State of Connecticut, sales and use permit issued 06/30/94 - expiring 5/31/96 - for the Panda Restaurant, Xue Shan C and Feng Hunay S.
3. City of Seminole, Oklahoma, Certificate issued to Golden China, Food Services Establishment dated June 13/97 - expiring 6-30-98
4. Licence - Oklahoma State Department of Health issued to Golden China, owners Shan Chao Xue dated 05/16/97 expiring 05/16/98
5. State of Oklahoma sales tax permit issued to China Restaurant and Shan Chao Xue dated 01/02/97 expiring 01/02/2000
6. City of Seminole, Oklahoma, Certificate Food Handler dated July 27/98 - expiring 6-30-99
7. Oklahoma Sales Tax permit issued to China House and Cho Xuz S. dated 04/25/98 expiring 04/25/2001
This is the only documentary evidence before the visa officer on the issues of ownership and operation. The applicant was unable to provide any supporting documentation, such as income tax returns, accountant's reports or business registrations to show that he ran a profitable business. A review of the officer's CAIPS notes found at pages 81-83 of the Record also reveals that the applicant supplied no personal net worth statement, no evaluation of his restaurants in the United States, no business plan and no proof of funds he would require to bring his proposed Canadian restaurant to fruition. The applicant in response to questions from the officer at his interview estimated this project to cost $120,000 but was only able to show bank deposits for $US 20,000. The balance was to be supplied in cash because the applicant feared depositing too much money in U.S. banks. The applicant also claims his business was very profitable despite the fact he rarely paid tax. He claimed that his business made yearly profits of $15,000 a year.
[11] The visa officer also gave the following reasons in her letter of refusal, namely that the applicant did not show that he had any qualifications as a business person; was unable to substantiate the fact that he had ever run or had successful participation in a successful business; did not have knowledge of the business transactions where he currently worked and was unable to provide any proof that his business proposal was a viable one that would provide employment for himself and allow him to support himself and his family in Canada.
[12] The applicant's evidence before this Court is that with each of his restaurants he did some or all of the cooking and handled all financial transactions. (Para. 3 of applicant's affidavit at page 6 of application record). However, the visa officer was of the opinion that the applicant had not met the definition of "self employed" found in the Immigration Regulations:
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 in Canada. (Emphasis added)
After reviewing the visa officer's CAIPS notes, all of the materials filed and having heard the submissions of the parties, I am of the view that the visa officer's conclusion, that the applicant had not satisfied her that he was able to become successfully established in his occupation or business in Canada was a conclusion that was reasonably open to her based on the evidence. The burden of proof was on the applicant and I am satisfied that the officer's conclusion that the applicant had not discharged that burden is a reasonable one.
[13] It is not necessary for me to consider the applicant's remaining submissions, namely, that the visa officer erred in finding that he was not qualified for his occupation; that the officer improperly dismissed the applicant's educational qualification (i.e. high school certificate); and that the officer under-assessed his personal suitability. Even if I were to accept each and every one of the applicant's submissions on these issues and apply the maximum number of units available to each, the total would be insufficient to provide the applicant with the requisite 70 units needed for permanent residence. Since I have determined that the visa officer did not err in concluding that the applicant does not come within the definition of a "self-employed" person under subsection 2(1) of the Immigration Regulations, the above alleged errors of the officer, if any, are not material to the determination of this judicial review. I therefore find no reason to intervene in the decision of the visa officer.
[14] For the above reasons, this judicial review will be dismissed.
[15] I have considered the applicant's requests for costs. I have reviewed the written submissions and have heard both parties on this issue. I conclude that there are no special reasons that would justify the awarding of costs against the respondent in this case.
[16] I have considered the seven proposed questions submitted by the applicant for certification. I have carefully reviewed the written submissions of both parties on the proposed questions and conclude in the context of the evidence before the Court that the questions posed do not give rise to a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a question.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge