Date: 20011120
Docket: IMM-345-00
Neutral citation: 2001 FCT 1272
BETWEEN:
GUANG LIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of the visa officer dated June 26, 2000, wherein the officer refused the applicant's application for permanent residence in Canada as a self-employed Chef (NOC 6141.3).
[2] The two primary issues are whether the visa officer correctly assessed the assets of the applicant and whether the scope of the assessment was proper. There are subsidiary issues such as whether the officer was functus officio when she refused the applicant's application; whether the officer was under a duty to assess the applicant in the category of entrepreneur when this was not indicated on his application nor at the interview, and whether the officer erred in awarding the applicant only two points for personal suitability.
[3] The visa officer's duty is set out in subsection 8(1) of the Immigration Regulations which reads in part as follows:
| ... for the purpose of determining whether an immigrant ... will be able to become successfully established in Canada, a visa officer shall assess 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; |
... afin de déterminer si un immigrant ... pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ... 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; |
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The factors in Column I are: 1. Education, 2. Education and Training, 3. Experience, 4. Occupational Factor and 6. Demographic Factor. Furthermore, as noted by the visa officer pursuant to subsection 8(4) of the Regulations:
| 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. |
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. |
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[4] While I agree with the applicant's counsel that the emphasis in subsection 8(1) is on whether the immigrant will be able to become successfully established in Canada, this does not mean that the visa officer must assess him in every possible category. This is illustrated by subsection 8(4) which talks about the visa officer assessing an immigrant who intends to be a self-employed person in Canada. The only person that can tell a visa officer that is the immigrant himself.
[5] It was only after the applicant's interview, December 2, 1999, that the applicant's lawyer sent in a letter asking that the applicant be assessed as an "entrepreneur" as well as a "self-employed Chef". However, even the counsel admitted that officers generally require more than the $150,000 Mr. Lin has to be eligible to be an entrepreneur. Other than this reference to entrepreneur, this is not a case where the applicant has requested to be assessed in more than one category.
[6] On the question of assets, the applicant submitted a certificate of deposit from the Bank of China to the visa officer which was the equivalent of $71,000 (U.S.). The officer referred to this deposit in her decision when she stated:
You also claimed that you had 400,000 RMB in China as the results of your savings for all the years you worked in the United states. When I asked you proof that this money came from your savings in the United States, you told me that you had lost the documents to support your claims. This absence of evidence regarding your finances makes me doubt that this money came from your earnings and that you have the ability to purchase a business in Canada.
[7] While it was certainly open to the officer to say that she doubted this money came from the applicant's earnings as a result of the applicant's answers, I do not agree that this would inhibit his ability to purchase a business in Canada. Ownership of the funds is what is important with respect to purchasing a business. However, to be admitted as a self-employed chef, it is not sufficient to be able to purchase a business. You must also be able to show that you can successfully establish yourself in Canada. The officer had this to say in this respect:
You claimed that you intended to open a fast food restaurant in a Shopping Mall in Toronto or nearby. When I asked you simple questions such as how you would deal with competitors and who were your competitors, on which basis you establish the cost of your products, the way you would determine a selling price to make profit, your answers remained vague and demonstrated that you did not have the knowledge nor the ability to establish successfully in Canada as a self-employed. You claimed that you figured out prices at $6.00/dish and that you expected 150 clients a month. I cannot conclude that your earnings would be sufficient to successfully establish in your occupation or in your business and to support yourself and your family in Canada.
[8] It was open to the officer to decide, based on the applicant's answers, that the business would not generate sufficient funds to enable him to successfully establish his business in Canada. Furthermore, it was certainly open to the officer to find that the applicant had not obtained the 400,000 RMB certificate of deposit from his savings in the United States.
[9] The applicant claimed his maximum salary was $3,833/month but he had no pay cheque or income tax form and said he was paid cash. As stated earlier, it was open to the officer to find that this money in China did not come from the applicant's earnings in the years he worked in the United States. I note that it was the applicant who raised the subject of the origin of the money located in China. Accordingly, the officer made no error under subsection 8(1) when he found that the applicant would not be able to become successfully established in his business in Canada.
[10] The applicant submitted that the visa officer should have exercised her discretion under subsection11(3) of the Regulations whereby:
| A visa officer may (a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or ... if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant ... of becoming successfully established in Canada ... |
L'agent des visas peut a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou ... s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier ... de réussir leur installation au Canada ... |
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[11] However, the visa officer found that she was not satisfied that the applicant would be able to become successfully established in his business in Canada. Furthermore, as stated by Evans J. in Han Qing Chen v. M.C.I., [1999] F.C.J. No. 528.
... I would have thought that the discretion in question is residual in nature, and should be decisive only in cases that present unusual facts, or where the applicant has come close to obtaining 70 units of assessment.
[12] In the case before me the visa officer only awarded 52 units out of the 70 required and, therefore, the applicant was not close to obtaining the 70 units in the assessment. Thus the visa officer did not err in not considering whether positive discretion was warranted.
[13] The applicant submitted that after having jointly signed a form describing him as "having been selected as an Independent/Business immigrant", the officer was obliged to issue his visa and is estopped from reversing her approval. This form is only used in the New York office and it is clear that the applicant was advised he was asked to sign a declaration as an administrative convenience pending her decision. There is no evidence that the applicant understood the declaration to mean that his application for permanent residence had been approved. Furthermore, he did not bring it to the attention of his counsel when he was told that he was refused at the interview. I agree with Tremblay-Lamer J. where she stated in Chen v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 261 at paragraph 10:
The statutory declaration signed by the visa officer and the applicant is a standard form which declares that the applicant will have a certain amount of funds to establish him or herself in Canada. Clearly the signing of this document is not a disposal of the case in accordance with the Act.
[14] I do not agree with the applicant that the visa officer felt that the applicant was required to open a restaurant immediately upon landing in order to be eligible as a self-employed applicant. Rather, the visa officer was only saying that applicants admitted as self-employed workers will begin working towards their goal of self-employment when they land. The visa officer, as stated earlier, made no error in questioning the applicant as to how he got his assets and making adverse findings based on a lack of proof as to how his funds were acquired. There was also no error in the officer's taking into account the applicant's lack of plans and lack of prior experience in managing a business. Both of these are clearly relevant to his ability to successfully establish his business in Canada.
[15] The applicant also stated the officer erred in awarding the applicant only 2 points for personal suitability. In the officer's affidavit she states:
In order to assess personal suitability, I generally ask a number of questions to allow the applicants to describe where they intend to settle, why they have chosen that particular place, what they know about the labour market, how they intend to establish successfully in Canada. On the basis of these replies, I gauge the applicant's personal qualities. The applicant did not demonstrate that he had taken any steps to prepare himself to establish successfully in Canada with his family. I took the following circumstances into consideration: the reasons he gave to have chosen Toronto were weak and not documented. He mentioned no other reason than Toronto has a big Chinese community. As a whole, he did not demonstrate that he had a strong settlement plan. Applicant displayed a weak level of initiative, adaptability, resourcefulness or motivation. I awarded 2 units of assessment for suitability.
There is nothing unreasonable in this assessment.
[16] The application for judicial review is dismissed. I was asked to certify a question as to whether the visa officer erred in looking at the origin instead of ownership of the assets. However, this question is not dispositive of the decision in this case and accordingly, I am not certifying any question.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
November 20, 2001