Date: 19971119
Docket: IMM-215-97
BETWEEN:
WO PING YUEN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
GIBSON, J.
[1] These reasons arise out of an application for judicial review of a decision of a Visa Officer who refused the Applicant's application for permanent residence in Canada. The decision is dated the 9th of December, 1996.
[2] The Applicant applied in Hong Kong for an immigrant visa to Canada under the "self-employed" guidelines. At the heart of those guidelines is the definition "self-employed person" in subsection 2(1) of the Immigration Regulations, 19781. That definition reads 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; |
The Applicant has extensive experience over some 15 years as a director/producer of motion pictures. He proposed to establish in Canada a film production business.
[3] In the letter conveying the decision here under review, the Visa Officer wrote:
| I have determined that you do not meet the definition of self-employed person for the following reasons: |
| You have been unable to demonstrate to my satisfaction that you have the ability to establish or purchase a business in Canada. In all aspects of questioning regarding both experience in Hong Kong and planned self-employment options in Canada, you were sufficiently vague as to create a lingering doubt regarding all facets of your application. |
| Notwithstanding your long term involvement with the motion picture business in Hong Kong, the breadth, scope, and success of your involvement therein does not convince me that you have the aforementioned ability. By your admission, your planned and potential target market is a small niche likely incapable of supporting you in a self-employed manner as you have envisaged. In addition, you were unable to articulate how you would be able to make the transition to establishing and maintaining a business in Canada given the differences in film style and genre between Canada and Hong Kong, nor were you able to posit that you would be able to establish yourself in an entirely or substantively different artistic and business milieu. |
| Your business performance, as substantiated by tax and accounting documents, indicates a business of modest proportions which provides a cyclical revenue stream contingent entirely upon your winning contracts or projects. This business frequently generates significant losses and in the most recent financial year, your sole corporate revenue has been rental income. You were also not able to explain the basic aspects of the accounting and management of this business, stating that this was handled by others, indicating marginal business management abilities. |
| Considered in aggregate, you do not appear to hold a reasonable chance of making a significant contribution to the economy or the cultural or artistic life of Canada. This assessment is further substantiated in that you have done little or no research into settlement or establishment in a self-employed capacity and finally, your lack of ability in English would greatly hinder any efforts to establish and operate a business in Canada. |
| Since you do not meet the definition of "self-employed person", you are a member of the class of persons who are inadmissible to Canada described in paragraph 19(2)(d) of the Immigration Act in that you do not comply with the requirements of the Immigration Act and the Immigration Regulations. Accordingly, I have refused your application. ... |
| I have also considered other factors in your application and find no other basis for approval. |
[4] Before me, counsel for the Applicant urged that, on the totality of the evidence that was before the Visa Officer, particularly as it related to the extensive experience of the Applicant in the film industry in Hong Kong, the Visa Officer's decision was simply perverse. Further, counsel urged that the 30 minute interview provided to the Applicant, particularly taking into account that the interview was conducted through an interpreter and that the Applicant's proposed establishment of a business in Canada represented a rather complex proposal, was simply inadequate to allow the Applicant to fully present his case and, as such, represented a breach of fairness owed by the Respondent to the Applicant.
[5] In response, counsel for the Respondent referred me to the very extensive affidavit of the Visa Officer filed in this matter and the handwritten and computer generated notes in support of the Visa Officer's decision. Counsel urged that the decision of the Visa Officer, whether or not I would have reached the same decision on the totality of the evidence that was before the Visa Officer, was reasonably open. Further, counsel urged that the length of the interview conducted was not of itself evidence of a lack of fairness where the Visa Officer's handwritten and computer generated notes clearly demonstrated that issues identified as being of concern to the Visa Officer on the basis of the Applicant's written application were reasonably explored.
[6] I conclude that this application for judicial review cannot succeed. In Brar v. Minister of Employment and Immigration2, the Court wrote:
| In our opinion the points argued by counsel for the Applicant raise only questions of credibility and of the weight of evidence and afford no legal basis upon which this Court could properly interfere with the decision of the Immigration Appeal Board. |
Here, apart from the argument regarding fairness, the points argued by counsel for the Applicant raised only questions related to the weight of evidence. In Hajariwala v. Canada (Minister of Employment and Immigration)3, Associate Chief Justice Jerome extended the reasoning in Brar to judicial review of decisions of Visa Officers. He wrote at page 83:
| This is not an appellate review. To succeed, the applicant must do more than establish the possibility that I might have reached a different conclusion than the visa officer in this assessment. There must be either an error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this essentially administrative assessment. |
[7] While the Applicant, in his affidavit filed in this matter, alleges that, during the course of his interview with the Visa Officer, the Visa Officer did not give him a full opportunity to provide certain explanations that he wished to provide, the version of the interview provided in the Visa Officer's own affidavit, supported by his notes, is not to the same effect. The Visa Officer presents the position that the interview provided a full and fair opportunity for the Applicant to respond to areas of concern identified by the Visa Officer in his review of the written material provided to him. I can find no basis to conclude that there was a lack of fairness in the interview process. The burden of the material before me is to the contrary. The length of an interview, of itself is not determinative. The more important issue is the quality of the exchange that takes place during the interview and I cannot conclude here that the interview was less than full and fair.
[8] For the foregoing reasons, I dismissed this application for judicial review from the bench. Neither counsel recommended certification of a serious question of general importance arising out of this matter. No question has been certified.
(Sgd.) "Frederick E. Gibson"
Judge
Vancouver, British Columbia
November 19, 1997
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: WO PING YUEN
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
COURT NO.: IMM-215-97
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: November 18, 1997
REASONS FOR ORDER OF GIBSON, J.
dated November 19, 1997
APPEARANCES:
Mr. Gerald G. Goldstein for Applicant
Ms. Esta Resnick for Respondent
SOLICITORS OF RECORD:
Mr. Gerald G. Goldstein for Applicant
Evans, Goldstein & Eadie
George Thomson for Respondent
Deputy Attorney General
of Canada
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