Date: 20011018
Docket: IMM-499-00
Neutral citation: 2001 FCT 1127
BETWEEN:
LI LI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of a visa officer, dated January 3, 2000, dismissing the applicant's application for permanent residence within the self-employed category, as a professional photographer.
[2] The applicant seeks an order quashing the decision and an order directing the respondent to process the applicant's application for permanent residence, made pursuant to the self-employed category, in a favourable manner, or in the alternative, an order referring the matter back to a different visa officer for redetermination.
Facts
[3] The applicant, Li Li, a citizen of China, submitted his application on July 30, 1998 for permanent residence, to be admitted to Canada under the self-employed category. As the principal applicant, he also sought admission for his wife, Liu Huimin, and his daughters Li Qiudi and Li Qiusha, all citizens of China, as dependant applicants. His application was refused by a decision of a visa officer in Hong Kong on January 3, 2000.
[4] The applicant has been a professional photographer since 1971. During that time he has worked for Jilin Photographic Publishing House in various positions ranging from reporter to associate editor. He has been a member of numerous professional and photographic associations and he has received numerous awards and recognition for his work. In 1993, Mr. Li was the recipient of The Government Special Benefit Award for contributions to the development and progress of Chinese culture. This award is said to provide him with lifetime monetary support.
[5] On December 6, 1999, the applicant was interviewed by a visa officer at the Canadian Consulate General in Hong Kong. During this interview, the applicant indicated that he planned to establish a photographic business in Toronto's Chinatown, and to support himself and his family either by conducting freelance photography work for Chinese journals and newspapers or by opening a photo shop to be managed by his wife, and ultimately by producing a pictorial book of Canadian landscapes to be published and sold in China. He further indicated that he was considering the possibility of establishing a Canada/China copyright business, by which he appears to have intended a book-selling business. When questioned about his knowledge of the Canadian marketplace, the applicant stated that his sister, who is a landed immigrant in Canada, had supplied him with information about costs of acquiring a business and the potential profits from its operations in Canada and that he had every reason to trust her research. The interview was conducted using a translator and the applicant admitted he had no facility with French, and while he had studied English for two years he was unable to demonstrate ability to speak it.
[6] In response to the visa officer's inquiry regarding the applicant's available capital, only one banking institution was able to provide certified statements of account. However, the applicant did provide interest statements with respect to his remaining accounts and assets.
[7] In a letter refusing the application, dated January 3, 2000, the visa officer stated:
I have determined that you do not meet the definition of self-employed person. Specifically, you have not satisfied me that you have the ability to establish or purchase a business in Canada that could create employment for you and would make a significant contribution to the economy or the cultural or artistic life of Canada.
Submissions of the applicant
[8] It is urged that the visa officer erred in his interpretation of the Act, ignored relevant facts, and failed to consider all the evidence before him in determining to refuse the applicant's application.
[9] Moreover, the applicant asserts that he is entitled to reasons for the refusal of his application beyond the mere statement of failure to satisfy the officer that he met the definition of "self-employed" as found in the Act. It is urged that without adequate reasons it is impossible for the applicant to ascertain the precise grounds on which his application was refused.
[10] It is the position of the applicant that his managerial experience was not considered by the visa officer in reaching his decision. Neither the refusal letter nor the officer's CAIPS notes, made at the time of the interview, offer any indication to the contrary. It is urged that undue emphasis was placed on the applicant's lack of self-employment experience, rather than on the practical experience he has. Furthermore, it is asserted that the applicant was not provided with an opportunity to respond to the visa officer's concern that his proposed business plan was too vague. When the applicant asked for time to produce a more detailed plan, he was informed by the visa officer that he ought to have provided it prior to, or at, the interview.
[11] The applicant takes issue with the visa officer's concern expressed, at the interview, about the source of his information regarding the Canadian marketplace. The applicant submits that the visa officer was preoccupied with the fact that the applicant relied on his sister to provide information rather than conducting his own research himself or taking an exploratory trip to Canada. The applicant asserts that the origin of the information is irrelevant, assuming it is reasonably accurate and reliable.
[12] Finally, it is asserted that in failing to examine the examples of photographic work presented by the applicant, the visa officer failed to consider the cultural or artistic contribution the applicant could make to Canada. It is urged that the visa officer had a duty to consider all aspects of the application, including the applicant's artistic achievement and abilities. In failing to consider this aspect of the application, it is submitted, the visa officer failed to consider all the relevant evidence before him.
Submissions of the respondent
[13] The respondent submits that the visa officer met his statutory obligations and arrived at a considered and fair determination. It is urged that the definition of "self-employed" in the Immigration Regulations, 1978 poses three questions that must all be answered in turn in the affirmative in order for an applicant to be successful in his or her application. These questions are:
1. Does the applicant have the intention to establish a business in Canada that will create an employment opportunity for himself or herself?
2. Does the applicant have the ability to establish such a business?
3. Will the applicant's business, if it is established, make a significant contribution to the economy or the cultural or artistic life of Canada?
[14] The regulations define a self-employed person thus:
"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.
[15] The respondent urges that the visa officer refused the application because he was concerned about the applicant's ability to establish a viable business in Canada. According to the CAIPS notes, the applicant was advised of this concern, and, in the view of the visa officer, he provided an inadequate response. This conclusion was reached after an examination of the applicant's business plan, characterized by the officer as vague, and in light of the officer's concern regarding the applicant's language abilities. Since the officer was not persuaded that the applicant had the ability to establish a viable business in Canada, the respondent submits that any possible contribution to the cultural or artistic life of Canada was irrelevant.
[16] The respondent argues that sufficient detail was provided in the refusal letter, that consideration of this application invites the Court to re-evaluate the factors considered by the visa officer. It is the position of the respondent that no reviewable error was committed by the visa officer in deciding to refuse the applicant's application.
[17] In response to the application, and the affidavit of the applicant submitted with exhibits, the respondent filed no affidavit evidence. The officer's CAIPS notes were included in the applicant's record with other documents from his file maintained by the visa office.
Issues
[18] The applicant urges that the visa officer erred in fact and in law and that he failed to observe principles of natural justice when no adequate reasons for rejection were spelled out by the officer in his letter of rejection. Further, it is urged that the respondent, having filed no evidence, may not rely on the CAIPS notes of the officer even though these were before me as part of the application record of Mr. Li Li.
Analysis
[19] It is urged that the visa officer failed to consider Mr. Li Li's work in a managerial capacity and his achievements in photography, and by so doing ignored evidence relevant to his assessment. In my view, that evidence may have been relevant to the nature of the contribution the applicant might be expected to make to cultural and artistic life in Canada, if he had demonstrated the capacity to establish a business in Canada. The conclusion of the visa officer that he was not satisfied of Mr. Li Li's ability to do so was supported by the evidence before the officer, in particular the vague nature of his business plans, his rudimentary understanding of business realities in Canada based on information from his sister, his lack of experience in any self-employed activity, and his lack of any ability to speak or write in either of Canada's official languages.
[20] At the hearing, for the applicant it was urged that having filed no evidence the respondent was not entitled to rely on the visa officer's CAIPS notes, citing the decision of my colleague Mr. Justice Pelletier in Tajgardoon v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 591 (T.D.). Unlike that case, here the notes are before the Court because they were included in the applicant's record. Moreover, the applicant and the respondent both refer to the notes in argument, the applicant by arguing that even if the notes indicate the visa officer expressed concerns about the inadequacies of the application during the interview, he ought to have provided an opportunity for the applicant to address those concerns.
[21] I am not persuaded that the visa officer erred in law by ignoring evidence before him of the applicant's ability to establish a business in Canada.
[22] Moreover, I am not persuaded that the conclusion of the officer, made in the exercise of discretion under the Immigration Act, can be said to be patently unreasonable or without regard to the evidence before him.
[23] Finally, the circumstances do not support a determination that the applicant was unaware of the concerns of the visa officer, expressed at the hearing. Those concerns related to the vagueness of his business plan, his lack of knowledge about market conditions in Canada, and his lack of ability in Canada's official languages. In my opinion, Mr. Li Li did have an opportunity to address those concerns at the hearing. Where this is the case there was no obligation on the officer to express, or to repeat, in the rejection letter, the principle objections to acceptance of the applicant's application.
Conclusion
[24] The application for judicial review is dismissed by an Order now issued.
(signed) W. Andrew MacKay
_____________________________
JUDGE
OTTAWA, Ontario
October 18, 2001.