Date: 20010223
Docket: IMM-4655-99
Neutral Citation: 2001 FCT 114
BETWEEN:
CHUANKAI CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
TREMBLAY-LAMER J.:
[1] This is an application under section 18.1 of theFederal Court Act1 of a decision of a visa officer, Nicole Genest ("visa officer"), dated August 9, 1999, wherein the applicant's application for permanent residence was refused.
[2] Mr. Chuankai Chen ("applicant"), applied to immigrate to Canada from China as a self-employed person. His intended occupation was "head chef/restauranteur" (self-employed) (CCDO 6241.3).
[3] The visa officer refused the applicant's application pursuant to paragraph 19(2)(d) of the Immigration Act2 and subparagraph 9(1)(b)(i) of the Immigration Regulations, 1978.3
[4] The visa officer assessed the applicant in his intended occupation, as a "head chef/restauranteur" (self-employed), in the following manner:
| FACTOR UNITS |
| Age 10 |
| Occupation 10 |
| SVP 07 |
| Experience 00 |
| ARE 00 |
| Demographic Factor 08 |
| Education 10 |
| English 00 |
| French 00 |
| Bonus 00 |
| Suitability 02 |
| TOTAL: 47 |
[5] In the visa officer's refusal letter, she states that she did not award any bonus units to the applicant because she was not convinced that the applicant would become successfully established in Canada. The visa officer explains that the applicant did not demonstrate that he possessed the qualifications or experience as a head chef/restauranteur, for example, he could not describe a cooking program he claimed to have completed. Further, the applicant could not describe the duties of a head chef. The visa officer accordingly awarded no units for the factor experience.
[6] The visa officer awarded two units for personal suitability because the applicant did not demonstrate any initiative in preparing to move to Canada. Specifically, the visa officer notes that the applicant had not researched Toronto, does not have a realistic business plan, and otherwise did not demonstrate that he had prepared to immigrate. The visa officer specifically states that her assessment accurately reflects the ability of the applicant to becomes successfully established in Canada.
[7] The applicant raises a number of arguments in the present application for judicial review.
[8] First, the applicant argues that the visa officer is functus officio, that is, that the visa officer already approve the applicant's application. He bases this argument on the fact that he signed a statutory declaration concerning funds, the fact that the visa officer held on to documents after the interview for verification, and the fact that the visa officer asked for documentation after the interview. The applicant submits this evidence indicates that the visa officer had accepted the applicant's application for permanent residence in Canada.
[9] In my opinion, there is no merit to the application of the doctrine functus officio to the case at bar. There is no evidence the visa officer ever approved the applicant's application.
[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.
[11] Further, the fact that the visa officer requested the applicant's previous file from Buffalo is not an indication that she intended to accept his application. After a review of the CAIPS notes and the visa officer's affidavit, I could not find any indication that she relied on any of the information contained in the previous file.
[12] Second, the applicant argues that the visa officer failed to assess the applicant in accordance with subsection 8(1) of the Immigration Regulations, 1978. I disagree. The visa officer concluded that the applicant did not demonstrate that he would become successfully established in Canada in accordance with subsection 8(4) of the Regulations. She based this assessment on the following evidence:
| · The applicant did not demonstrate that he had been trained in the management of a restaurant's kitchen. |
| · The applicant could not distinguish between a chef and a head chef. |
| · The applicant did not have documentation to prove that he owned a house in China. |
| · The applicant claimed to have $54,000 (U.S.) in China, however, he provided no up-to-date proof that the funds were still available. |
| · The applicant provided no explanation of how he was able to save this money when he earned $2,500/month (U.S.). |
| · The applicant was unable to explain how he had prepared to immigrate to Canada except to say that he had raised the money. |
[13] Based on this evidence, and given the broad discretion that enjoys the visa officer, I find that her assessment that the applicant would not become successfully established in Canada is reasonable.
[14] The applicant also argues that the visa officer erroneously assumed that the applicant would have to open a business immediately upon landing in Canada, which is not required under the self-employed category. The evidence does not support the applicant's argument. The visa officer states in her cross-examination that "[a] self-employed person would be expected to begin work on their project as soon as they settle in Canada". She then explains that "the person has to initiate the project. In other words, they have to start working to open the restaurant as soon as they settle in Canada." 4
[15] In my view, it is reasonable to expect a self-employed person to demonstrate a genuine intent to work on his or her project once settled in Canada.
[16] The visa officer was equally reasonable in her assessment of the applicant's personal suitability. She considered that the applicant had not prepared himself to move to Canada, he did not research the market nor did he have a strong settlement plan. She also considered the applicant's only stated reason for immigrating to Canada was because Toronto had a large Chinese community. She weighed the proper factors in a reasonable manner.
[17] The applicant's argument that the visa officer refused to consider whether "positive discretion" is warranted is also without merit. The evidence clearly indicates that subsection 11(3) was considered but that the visa officer did not find that the positive discretion was warranted.
[18] The applicant argues that the fact that he entered the United States in 1993 without status, but immediately received a job as a cook, should have been considered by the visa officer. Specifically, he contends that the visa officer should have asked whether the techniques used by the applicant in establishing himself in the United States could be used in Canada. However, in my opinion, the onus is on the applicant to make his case before the visa officer. The applicant did not demonstrate that he prepared to move to Canada.
[19] Finally, the applicant argues that the visa officer failed to assess him as an entrepreneur. The applicant states that he meets the criteria of an entrepreneur given that he wanted to open a restaurant employing his wife and at least three kitchen staff.
[20] Having reviewed the transcripts, it is clear that the applicant did not raise the issue with the visa officer. Given that the issue was not raised, it seems unreasonable to require visa officers to consider all possible categories in which an applicant may be successful.
[21] MacKay J. dealt with this issue in Wang v. Canada (M.C.I.):5
| While the entrepreneur and investor classes are within the larger group of business immigrants, it is my opinion that the two are sufficiently separate that the visa officer is not under a legal obligation to consider one as an alternative to the other unless the applicant makes clear in an application that he or she seeks permanent residence in both categories as alternatives and indicates how he or she qualifies in each category as defined in the regulations. The request for consideration as an "investor" was not set out in the application, though it was added in the letter from counsel, but no effort was made to set out the qualifications of the applicant as an investor as defined in the Act and there had been no written communication to the Minister about any prospective investment, apart from that implicit in the application as an interpreneur [sic]. In my view, the visa officer did not err in considering the applicant as one seeking admission as an entrepreneur only, and in not considering him as an applicant in the investor category.6 |
[22] I am of the same view. In my opinion, there is no obligation for the visa officer to have assessed the applicant in alternate categories not specifically raised by the applicant.
[23] For the above reasons, the application for judicial review is dismissed.
[24] Counsel for the applicant asked that the following two questions be certified:
| Is the burden of applicants limited to adducing relevant facts and supporting documentation in response to assessing officers' questions and requests or do applicants have the further burden of (a) being knowledgeable in all provisions of the Immigration Act and Regulations and (b) educating assessing officers in each favourable provision; or, is it the respondent's duty, after having extracted significant cost-recovery fees in exchange for promised, proper assessments, to provide officers sufficiently well-versed in the applicable law, statutory provisions and regulations such that they will make a full and fair assessment - Cf. Farokh Zamyadi v. M.C.I. (30 March 2000) IMM-1092-99, Tremblay-Lamer J. and Joseph Rozario et al. v. M.C.I. (2000) 7 Imm.L.R. (2d) 315 at 319, O'Keefe J. - after having accessed all relevant provisions and, in particular, s-s. 11(3)(a) of the Immigration Regulations, where the facts before them would lead an average, unbiased Canadian, properly instructed in the law, to do so? |
| Is the duty of Crown counsel in defending a civil servant's decision before the Federal Court of Canada to seek justice; i.e., to act in the public's best interest; or to seek victory by any lawful means possible in zealous pursuit of the desire of the civil servant(s) whose (in) action is the subject of the civil litigation? |
[25] The Court is not satisfied that neither question raises a serious question of general importance which should be determined by the Court of Appeal.
O R D E R
[26] The application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
February 23, 2001.
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