Date: 20190724

Docket: IMM-3251-18

Citation: 2019 FC 982

Ottawa, Ontario, July 24, 2019

PRESENT:  Mr. Justice Annis

BETWEEN:

WEI, ZHIMING

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I.  Introduction

[1]  This is an application of judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27) [IRPA] of a decision of an Immigration Officer [the Officer], of Immigration, Refugees and Citizenship Canada [IRCC] refusing Zhiming Wei’s [the Applicant] application for permanent residence in Canada as a member of the Self-Employed Person class, as defined in sections 101(1) and the relevant definitions in 88(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR].

[2]  For the reasons that follow the application is dismissed.

II.  Background

[3]  The Applicant is a Chinese citizen who applied for permanent residence in the Self-Employed category on June 10, 2016. He apparently has a net worth of some 20 million dollars Canadian.

[4]  His work experience is varied, primarily in the cultural industry involved in the purchase and sale of television dramas and movies, as well as experience as a television producer, publisher and director. In his application, he expressed his intention to establish a company in Vancouver for film and television culture communication or to take part in the operation management of a television drama production, producing content aimed at Chinese audiences, bringing Chinese content to Canadian audiences and introducing Canadian television programs to China.

[5]  On March 22, 2018, the Applicant was asked to submit documents related to his relevant experience as a self-employed person as well as updated forms.

[6]  On June 5, 2018, the Applicant attended an interview in Hong Kong, to which he brought additional documents and from which the Officer prepared four pages of detailed notes. The next day, his application for permanent residence was refused on the basis that the Applicant did not meet the requirements of the Self-Employed Person class.

III.  Impugned Decision

[7]  In the refusal letter, the Officer found that the Applicant did not have a concrete business plan regarding his self-employment in his intended destination of Vancouver to meet the definition of a Self-Employed person under section 88(1) of IRPA. The Officer noted that the Applicant had visited Canada but had conducted limited research regarding his intended self-employment in Canada, that he had no idea of the costs of his intended business in Canada, that he was not aware of the existing competition, labour market and wages, that he had no idea on how to source potential clients and how to promote his business in Vancouver, and that he spoke neither of the official languages.

[8]  The Officer also noted that it appeared that he Applicant would rely on assistance from friends and liaison companies in order to conduct his self-employment in Vancouver.

[9]  In conclusion, the Officer indicated that she was not satisfied that the Applicant had established that he had relevant experience or that he had the ability and intent to make a significant contribution to specified economic activities in Canada as those requirements are described in the IRPR.

[10]  As the Applicant did not meet the definition of a self-employed person as found in section 88(1) of the IRPR, his application for permanent residence was refused pursuant to section 100(2) of the IRPR, and section 11(1) of the IRPA.

[11]  The impugned decision was supported by extensive notes of information obtained during an interview of the Applicant. The notes indicate that he had the relevant experience requirement in respect of two one-year periods of experience in self-employment and cultural activities. However, the notes provided extensive detail of his inability to provide relevant information when questioned regarding his ability and intention to be self-employed in the manner stated.

[12]  The Applicant filed an affidavit to which the Respondent replied with that of the Officer. The Applicant cross-examined the Officer; the Respondent chose not to cross-examine the Applicant.

IV.  Statutory framework

Immigration and Refugee Protection Act, SC 2001, c 27 (ss 12(2))

 

Immigration and Refugee Protection Regulations, SOR/2002-227 (ss 100(1))

Immigration and Refugee Protection Regulations, SOR/2002-227 (ss 88(1): Definitions)

Immigration and Refugee Protection Regulations, SOR/2002-227 (ss 100(2))

V.  Issues

[13]  The Applicant submits that his application raises a single issue, namely did the Officer err in finding that the Applicant does not qualify as a “self-employed person” under section 88(1) of the IRPR because he does not have the relevant experience, intention and ability to be self-employed in Canada and to make a significant contribution to specified economic activities in Canada?

VI.  Standard of Review

[14]  The parties did not make submissions on the standard of review. While the issue of whether the Applicant qualifies as a self-employed person under section 88(1) of the IRPR could be said to be a finding of mixed fact and law, for the most part the findings relate to factual findings in relation to the conditions to demonstrate self-employment, all of which the Applicant was required to meet.

[15]  Mixed questions of fact and law, and specifically findings of fact are reviewed on a highly deferential standard of reasonableness. The Court is not entitled to reweigh the evidence, and so long as there is some evidence in support of the findings, the factual conclusions are not subject to being set aside unless in the clearest of cases (Canada (Citizenship and Immigration) v Khosa,  2009 SCC 12; Njeri v Canada (Citizenship and Immigration), 2009 FC 291 at para 12).

[16]  With respect to the Court’s approach to the quality of reasons, it is well understood that the Court must first seek to supplement the reasons before it seeks to subvert them, and the Officer is presumed to have considered all of the evidence (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),  2011 SCC 62 at para 12).

VII.  Analysis

A.  Sufficient evidence to support the Officer’s assessments of fact

[17]  The Officer’s notes of the Applicant’ interview demonstrate that he had played a minimal role in the production of a film in Vancouver that was undertaken by a friend, or that he had any concrete plans to demonstrate that he had the means or the intention to proceed with the production of a TV drama regarding foreign students in Canada. The Officer’s notes in part pertaining to past Vancouver film and potential TV drama are as follows:

States a crew of workers already started some shooting works in Vancouver in late 2017. PA States during their visit in 2016, he and the friend selected scene in Vancouver for shooting. (Principal Applicant) presented script and a list of booking list for crew members. I asked PA to provide detailed information of his role and responsibilities in this production, such as details of his crew members, details of their work visas, if required, production costs in Canada etc.

PA advises he has no detailed info of the production part in Canada. States performers and actors/actress are all hired in China, states he has no idea of the crew members, their wages. States in fact his friend is the main person in charge of the production in Canada. States he is involved in the script, assists find actors in China, states all of the actors/actress should be from China. States only little shooting was done in Vancouver.

States however, he is also planning for another TV drama regarding foreign students in Canada. Says it will be 30 episodes TV play to be named as “Road to Study Abroad”, presented a project plan. PA does not have detailed information yet. States he plans to continue this project after his application will be approved. States all workers and actors will be from China. He may plan to hire temporary workers in Canada if required. No details can be provided. No proof of potential clients in Canada yet. No proof of PA’s actual participation in this production yet. States he plans to select Toronto scene for this production. States he is not in active participation yet as it is still in the early stage of planning.

Plans to broadcast in Canada TV station. No details yet. No idea regarding the costs of his production, such as filming equipment, wages. States he is going to export his filming equipment from China. He has no idea re applying for Working visas for his crew from China, if required.

States in the future after he will immigrate to Vancouver, he will have more self-employment plans in Vancouver. States he will contact liaison companies for his TV drama production and promotion. States previous friends who are now in Canada may give him details re liaison companies in Canada. States existing he is paying liaison company in China to do all contact works for him. States with the assistance from liaison companies in Vancouver, he has confidence he can be carry out intended business plan without big problems.

[18]  In this case, the Officer had copious items in her contemporaneous notes demonstrating the Applicant’s inability to provide information on the various items listed in her decision letter. As she indicated in cross-examination, she had “no idea what he would be doing in the future and it all depends on if his application would be approved after he moved to Canada. The business plan consists of four pages expressing his belief and plans, with little in the way of concrete evidence on the record demonstrating at any point that he was in situation to follow up on any of it.”

[19]  The interview notes are sufficient evidence to support the Officer’s findings that the Applicant had not met the requirements of section 88(1) of the IRPR based on his intention and ability to be a potentially self-employed person who is able to make a significant contribution to the economic activity of filmmaking in Canada.

[20]  The Applicant challenges the contents of the GCMS contemporaneous notes of his interview. He argues that the cross-examination demonstrates that the Officer did not understand some of the terms she was using, with little understanding of his work and challenging his use of liaison companies contained in the notes. I find no basis to support these criticisms, which I address below. All the questions asked in the interview were entirely relevant to the issues, and the Applicant’s answers demonstrate that he had only the vaguest of plans with nothing in the way of concrete steps taken to put them in place.

[21]  The Applicant argues that because the Respondent did not cross-examine the Applicant on his contentions that she was untruthful in describing their interview must be accepted. In particular this argument is made with respect to the notes indicating that he was relying upon liaison companies to carry out most of the activities, which the Applicant “flatly denies”. With respect, this is a serious allegation to make against a visa officer.

[22]  His submission of the Officer’s lack of truthfulness based on whether she chose to cross-examine the Applicant does not demonstrate that. Very often counsel choose not to cross-examine if not required. This was clearly one of those situations, as the Officer’s notes indicate a failure to substantiate claims in all respects of the application, i.e. unable to give details of potential clients he had visited in 2014 or 2016; asked to provide detailed information of his role and responsibilities in the 2017 production; advised he had no detailed information and that his friend is the main person in charge of the production in Canada, etc. This was followed up with various other questions that could not be answered over the four pages of detailed notes recorded in the GCMS notes.

[23]  Generally, it is a very rare case where a highly self-interested applicant will be able to convince the Court that a trained visa officer falsified records in his or her contemporaneous notes without very clear evidence to support the allegation. The Court must defer to an employee who has developed an expertise in assessing these types of economic claims in terms of determining that there is insufficient persuasive evidence to conclude that there is a likelihood that the applicant will follow up on his business plans after obtaining permanent residency. To do otherwise would involve the Court reweighing the evidence.

[24]  Moreover, in matters of procedural unfairness, and particularly bad faith, applicants are permitted to file additional materials demonstrating the impugned actions at issue. All the Applicant had to do was provide substantiating evidence of the unanswered questions in the Officer’s notes, none of which was provided. This is particularly necessary in the circumstances where the notes refer to time and time again on his reliance of friends and others in respect of his participation in the past filming in Vancouver, but also his intentions going forward to produce the series of films in Toronto in the future. Without reference to the liaison individuals, there is very little concrete, detailed, objective and corroborative evidence of what the Applicant did in the Vancouver shootings, or how he could possibly arrange the future film production in Toronto without extensive reliance on others, this being the meaning of liaison companies.

[25]  He did not do so, instead, he provided only his recollection of his comments during the interview. For example, in his affidavit filed with the Court he provided his recollection of the discussion of the pending film production series in response to the Officer’s questions.

Also, this is how I recall our discussion of my current project:

Officer: What business plan do you have next?

Me: I am now planning script of the play “Road to Study Abroad” that reflects lives of Chinese child students in Canada.

Officer: any difference from “Always With You”

Me: “Always With You” tells about study abroad life from the angle of fathers and mothers. while “Road to Study Abroad” focuses more on the children's' perspectives.

Officer: what is your role?

Me: The play is now at script writing stage, and I will participate in later investment and production as well as issuance.

Officer: when to shoot?

Me: it will start when the script is ready.

Officer: will your company hire Canadians to work for you in the future?

Me: Yes (sure)

Officer: do you know how much you need to pay for salary?

Me: as I know, about 4000 Canadian Dollars monthly.

Officer: what exactly would you hire them to do?

Me: Liaison and coordination.

Officer: Have you registered the company? Rent office? Hired

staff?

Me: Not yet

[26]  As well, the length and detail of the Officer’s notes, most of which related to the Applicant’s failure to provide responses to questions, none of which has been provided in the aftermath, suggests that the notes properly represent the contents of the interview, such as to question the Applicant’s credibility, not that of the Officer.

[27]  Moreover, on the issue of who is credible, the following passage from the Officer’s notes concerning the Applicant’s conviction for bribery in 2016 based on public open source information do not assist the Applicant’s submission:

I advised principal applicant the information obtained from open source against his companies and asked PA to provide explanation: (Website of the judgement on line). PA was convicted of bribery and was sentenced to detention of six months and suspended for one year. Case concluded 2016/09/01. Information indicated Principal Applicant acted as the GM of the Shanghai Sky Advertising Communication and Shanghai Donghan Culture and Development Co Ltd. I asked Principal Applicant to provide details and reasons he failed to disclose this information in current application: Principal Applicant admits above information, states however only related to the companies and a staff involved in the bribery. States he did not disclose on his application because he was not involved. I told the Principal Applicant he is the major shareholder of the Shanghai Donghan Culture and Development Co Ltd. His wife also has shares in Shanghai Sky Advertising Communication. Principal Applicant states the charge only to individual staff involved bribery, not him. States he has clean police certification issued 2018/3/29 submitted on his application. Principal Applicant is unwilling to provide further details and evasive to provide information if he was sentenced to detention.

[28]  I completely reject any suggestion that the Officer did not appropriately discharge her duties in an independent and unbiased fashion interviewing the Applicant, or fail to take down accurate contemporaneous notes of the meeting upon which the Court may rely with confidence.

B.  Intention and ability to be self-employed

[29]  The Applicant argues that the Officer applied the wrong definition of “ability” which he says differs from the norm, thereby rendering her reasons to lack transparency and intelligibility. In addition to responding to this issue regarding the meaning of “ability”, I also will consider the meaning and application of the term “intention”, also required as a criterion to be “self-employed” under section 88(1) of the IRPR. The Applicant appears to have overlooked whether his application demonstrated in any fashion an intention to carry through with his plans to produce a series of TV films in Canada that would provide a significant contribution to cultural economic activities in Canada.

[30]  However, before doing so I point out again that the issue in this matter is not one of definitions of terms, but rather the sufficiency of evidence based on the record. It demonstrates that the Applicant was unable to provide anything but vague statements of limited participation in the past film productions, with minimal research for the planned 30 episodes of a TV drama, relying, as with the Vancouver production, on others going forward. I consider the definitions of the terms “ability” and “intention” only because the Applicant appears to have little idea of what is conceived in meeting the definition of a self-employed person who can make significant contributions to a specified cultural economic activity in Canada.

[31]  For purposes of construing these terms, I set out the definition of “self-employed” as follows, with the exception of referring to the term “experience” which is not controversial, with my emphasis on the key expressions:

“self-employed” means a foreign national who has relevant experience and has the intention and ability to be self-employed in Canada and to make a significant contribution to specified economic activities in Canada.

[32]  Both terms, “ability” and “intention”, must be interpreted contextually. The Oxford dictionary definition of “ability” referred to by the Applicant is “Possession of the means or skill to do something [my emphasis].” The application of the term “ability” is, furthermore, related to the deliverable of making a “significant contribution to specified economic activities (in this case cultural) in Canada”.

[33]  In this specific case, the activity is that of producing films that engages a considerable number of different employees and organizations working in a “team-like” fashion to achieve a common goal of a financially successful series of films. By its very nature film production of a series of 30 episodes for television is a complex deliverable requiring extensive planning and coordination of all manner of associated activities that go into writing, producing and marketing a film, as demonstrated on a daily basis whenever full credits are provided for all the participants that made the film possible. In the instance of the Applicant, this is something that will occur in the future. Moreover, to make a significant contribution to Canadian culture, unless otherwise essential, it should not involve Chinese actors from China, or recourse to the Applicant’s Chinese facilities in China to support filmmaking. In order to contribute significantly to the Canadian cultural economic scene, all aspects of the production of the films should occur to the greatest extent possible in Canada.

[34]  Accordingly, when the definition of ability indicates that the Applicant must possess the means to produce films in Canada, just by definition of what it entails requires demonstration of extensive planning and details of the means for execution. The fact that he may produce films in China mostly goes to experience. Ability is a different aspect for projects of this nature where demonstrating the possession of the means to be able and to execute the project is what is comprised in the intention of section 88(1) of the IRPR, which in the case of film production  by implied definition will involve a number of different talents and capabilities.

[35]  There is actually no basis therefore, to criticize the Officer for that portion of her explanation that required an indication from the Applicant of how the project was going to proceed when it obviously involves numerous other participants for its execution as a reasonable demonstration of an ability to produce a series of TV films. His answers were entirely based upon others doing most of the work, with actually no meaningful indication of how the project was to proceed.

[36]  The Applicant’s role is to write the script, sometime in the future, after which he may play some undefined role in the investment, production and marketing of the project, clearly based on others having carriage of these activities that are fundamental to the economic success of the film, with never a mention of what Canadians will do in the circumstances of this project.

[37]  Such is this evidence, that it is not even clear that permanent residency is required for the project to succeed. The preceding production of the film in Vancouver did not require the Applicant’s permanent residency for its completion. The concept underlying a self-employed person under section 88(1) is that permanent residency status is necessary for the success of the project, not that the project can succeed otherwise, but that the Applicant should be rewarded with permanent residency if success results. The intention is that the Applicant be self-employed in Canada for the purpose of significantly contributing to a specified economic activity.

[38]  Additionally, an applicant cannot obtain permanent resident status based on an undertaking to complete one task in a multi-tasked production and marketing of the results by having others to carry out a project in Canada. Seen in this perspective, the Officer’s criticized answers seem entirely reasonable in respect of a practical meaning of ability in regard to the requirements of section 88(1) of the IRPR, which are as follows:

The ability depends on what the Applicant -- the things that -- what he proposed to implement to do in Canada is on his own, by his own, not rely on somebody else to carry out the job for him, and he must participate on his own.

( ... )

And also he must have some ability to tell me what is in his mind or in his proposal that he is going to implement his plan, his proposal, he should have the knowledge and information, details to tell me what he's going to do and it is realistic that he can do it on his own.

[39]  Moreover, I do not accept that “ability” should be considered absent the requirement to demonstrate the “intention” to carry through on a proposed future project to make a series of television films in Canada. Indeed, of the two terms, I would think that “intention” may be the most significant requirement in terms of the challenge to meet the requirements of “self-employed” in section 88(1). It was not addressed by the Applicant.

[40]  It is well-known that intention is a mental attribute, and therefore can only be found as a fact by the examination of past external conduct evidence broadly defined, which proves as a likelihood the end or purpose of the conduct. In this case, the conduct must prove as a probability that the Applicant will proceed with all the necessary effort and mental commitment required to produce a series of films for television in Canada that add significantly to filmmaking activities in Canada.

[41]  Proving an intention of a result that has already occurred is very different from proving an intention to do something in the future. While proving both forms of intention are in some sense backward looking by fixating on exterior past conduct, to prove future commitments will be met, there are no concrete events leading up to the fulfilling commitments. Moreover, unlike criminal intention, statements will play little role in demonstrating an intention to meet commitments unless persuasively substantiated by past conduct.

[42]  Because the future is hard to predict at the best of times, while words are of so little value when there is the highly valuable collateral benefit in obtaining Canadian permanent residency as an outcome obtained prior to the commitment being completed, the intention to fulfill a future commitment depends on evidence of a significant past commitment that goes a long way in enabling the project.

[43]  Accordingly, the test in section 88(1) of the IRPR for what might be described as “commitment or promised intention”, in combination with considering the applicable experience and ability factors, would require an applicant to persuasively demonstrate past effort and commitment of sufficient weight such that the officer may conclude that the applicant has demonstrated that he or she will likely proceed as a self-employed person after obtaining permanent resident status to implement the project, which will make a significant contribution to the specified cultural activity in Canada. Under normal circumstances, this will require a demonstration of significant pre-application efforts taken with a view to advancing a well-conceived, researched and executed project that indicates a serious possibility of economic success, such that it is unlikely that the applicant would not proceed with the project so long as permanent residency is obtained to enable this to happen under normal circumstances.

[44]  As a final word on the subject, the manner whereby the three requirements of experience ability and intention come together to demonstrate a viable economic venture will vary depending upon the circumstances. In this matter, the project of making a series of films for television is a multitasked undertaking involving many forms of cultural activities and other trades associated with producing and marketing a successful film. Smaller scale projects can better leverage personal experience and ability to establish probabilities of success in a specific cultural economic activity with accordingly less onerous past commitments needed to demonstrate a likely intention to follow through on the activity. However, fundamental to every application is a demonstration that the projects have been thoroughly conceived and concrete steps taken to ensure the implementation that will result in a successful economic activity to meet the requirements of a self-employed immigrant under section 88(1).

[45]  Finally, the Officer cannot be criticized for noting that the Applicant could not speak either official language, particularly when it is stated as a factor in the overall assessment of being self-employed. The Applicant seeks to be a permanent resident in a country with two official languages where he speaks neither and proposes to take on a highly complicated project at the same time. Language abilities are always a relevant consideration for success in Canada. This is even more so for persons who wish to earn their way into the country to become permanent residents, where supposedly they will spend the rest of their life contributing to Canada, i.e. permanent residents. The Applicant promising to learn one of the two official languages only once a permanent resident is among the clearest signal, and as empty as the remainder of his application in terms of the absence of any demonstration of commitment to Canada. The time and place to start learning the language is well before the application is filled, or some demonstration of intensive training success. The last thing an applicant should do is criticize the Officer for doing her job in noting requirements not met as a relevant consideration why the application should be refused.

VIII.  Conclusion

[46]  The application is dismissed. No questions are certified for appeal.

JUDGMENT in IMM-3251-18

THIS COURT’S JUDGMENT is that the application for judicial review is dismissed and no questions are certified for appeal.

“Peter Annis”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-3251-18
STYLE OF CAUSE:	WEI, ZHIMING v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	MONTRÉAL, QUEBEC
DATE OF HEARING:	APRIL 1, 2019
JUDGMENT AND REASONS:	ANNIS J.
DATED:	july 24, 2019

APPEARANCES:

Annabel E. Busbridge	For The Applicant
Evan Liosis	For The Respondent

SOLICITORS OF RECORD:

Bertrand, Deslauriers Avocats Montréal, Quebec	For The Applicant
Attorney General of Canada Montréal, Quebec	For The Respondent