Date: 20010516
Docket: IMM-3412-00
Neutral citation: 2001 FCT 492
Ottawa, Ontario, Wednesday the 16th day of May 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Changyan Lin is a 38 year old citizen of the People's Republic of China who applied for permanent residence in Canada in the self-employed category in the occupation of a chef of Chinese food. He brings this application for judicial review of a decision of a visa officer at the Canadian Consulate General in Seattle, U.S.A., dated May 24, 2000, whereby his application for permanent residence was refused.
FACTS
[2] Mr. Lin has lived in United States since 1992. While there he has worked as a chef at a Chinese restaurant.
[3] The visa officer concluded that Mr. Lin did not meet the definition of a self-employed person. The officer stated that Mr. Lin had not demonstrated either that he had the intention to establish a business upon immigrating to Canada or that he had the ability to do so. The officer found that Mr. Lin had no financial management experience or education which would be central to operating a business. The officer also concluded that Mr. Lin's admission to Canada would not provide a significant contribution to the economy.
[4] The visa officer also assessed Mr. Lin's application pursuant to subsection 8(1) of the Immigration Regulations, 1978, SOR/78-172, ("Regulations") and awarded him 57 units of assessment.
THE ISSUES
[5] Mr. Lin asserted that the visa officer committed the following reviewable errors:
i) the visa officer did not approach the assessment with an open mind;
ii) the visa officer failed to assess his application in accordance with the Regulations;
iii) the visa officer imported a criterion she herself could not grasp; and
iv) the visa officer relied on an erroneous finding of fact.
[6] Additionally, Mr. Lin complained that the visa officer did not answer all questions put to her on cross-examination and asserted that a visa officer should be obliged to answer any and all questions put to the officer on cross-examination. Mr. Lin also seeks the costs of this application.
ANALYSIS
[7] Mr. Lin has not established that the visa officer failed to assess his application with an open mind. There is no evidence to support the suggestion that the visa officer had reached her conclusion prior to interviewing Mr. Lin.
[8] Having so concluded, I am persuaded that the visa officer did err in her analysis of whether Mr. Lin's intended business would make a significant contribution to the economy although I do not find the error to evidence bias. The visa officer's interview notes record the officer's comment that "simply providing food does not represent significant econ[omic] bene[fit]...". In her affidavit, the visa officer swore that "[r]egarding the proposed economic contribution to Canada, I expressed doubt that providing fast food, in and of itself, represents a significant economic contribution".
[9] InZhao v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 260 (F.C.T.D.) Reed J. wrote:
[12A] _____I consider it to be an error to classify the type of occupation a person follows as either being or not being of significant benefit to the economy of Canada. In assessing an applicant under the self-employed category, it is the business the person intends to establish, purchase or invest in that must be of significant benefit to the economy. Thus, a prospective convenience store business may or may not be of significant benefit to the economy depending upon the particular circumstances of the case. One does not say that a person who intends to follow the occupation of convenience store operator can never be admitted to Canada as a self-employed immigrant, because the occupation of convenience store operator is not an occupation of significant benefit to the economy. Similarly, the business a stock-broker intends to establish may in some circumstances be of significant benefit to the economy, in others, it may not - it depends upon the circumstances of the particular case. The type of occupation, itself, is not the focus of the type required analysis.
[12B]_____ Factor 4, however, is relevant to the type of occupation the person intends to follow, not because it determines whether that occupation is of a type that is of significant benefit to the economy (which, as I have indicated is the wrong question to ask) but because it relates to the demand in Canada for persons trained in that occupation. While a self-employed immigrant can still be granted landing although awarded 0 points under Factor 4, it is also possible that a person may not be granted landing when awarded 10 points. This may occur in circumstances where there may be considerable demand for the occupation, but the business the person intends to establish is determined not to be of significant benefit to the economy. Simply put: the type of occupation is relevant to Factor 4, but the assessment of whether a person should be granted landing as a self-employed immigrant is not determined by focusing on the type of occupation the prospective immigrant intends to follow, as opposed to the business that it is intended to establish, purchase or invest in." [underlining added]
I respectfully agree with and adopt that analysis.
[10] Therefore in concluding that providing food does not in and of itself represent a significant economic benefit the visa officer erred. The visa officer's inquiry ought to have been directed to the benefit to be provided specifically by the business proposed by Mr. Lin.
[11] This conclusion is not, however, determinative of this application because the visa officer also found that Mr. Lin failed to meet the first part of the definition of a self-employed person as found in subsection 2(1) of the Regulations.
[12] That definition is 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. |
« travailleur autonome » s'entend d'un immigrant qui a l'intention et qui est en mesure d'établir ou d'acheter une entreprise au Canada, de façon à créer un emploi pour lui-même et à contribuer de manière significative à la vie économique, culturelle ou artistique du Canada. |
|
[13] I have not been persuaded that the visa officer erred in reaching that conclusion. The relevant entry in the CAIPs notes is as follows:
Advised PA of my concerns: that he has not demonstrated he would be able to support himself as a self-employed person. While previous self-employment is not req d, it would likely be more difficult for him, given that he has never done it before. He has cooking experience, but little experience with the financial side of running a small business. Lastly, based on his own statements, I have serious doubts that he actually intends to be self-employed.
[14] The visa officer had recorded in her interview notes "work or start business? Ideal would be to set up business".
[15] The visa officer swore in her affidavit:
11. I asked Mr. Lin how he would be able to operate a business in Canada with no working knowledge of either of Canada's official languages. Mr. Lin stated that he knew the simple phrases of his trade in English. I asked if he could do business in English. He said that he would not need to speak English, as he would use Chinese suppliers. Mr. Lin stated that he would not be able to write a menu, read a contract, purchase equipment or set up basic services for his business without an interpreter's assistance. He had never worked as a server or counter-person, or in any occupation which requires contact with English (or French) speaking clients. He had studied English only three months of the seven years that he has lived in the United States.
[...]
I asked him to clarify his intentions, whether he intended to find a job, or work as a self-employed person. He said that he intended to work as an employee for some period of time, he did not know how long. He stated that, ideally he would start his own business, but he did not know if he would be lucky in business. Mr. Lin had never established a business before. He stated that the market for a small business in Canada would be more favourable, but he was unable to give any credible evidence to support this assertion.
[16] I do not find that evidence to have been impugned to any significant extent on cross-examination.
[17] On those facts, the visa officer could reasonably conclude, as she did, that Mr. Lin had not demonstrated that he intended to, and had the ability to, establish or purchase a business in Canada. In reaching that decision, the visa officer did not import extraneous criteria nor was the decision tainted by any erroneous finding of fact with respect to the "Cast Ocean Seafood Restaurant" as discussed more fully below.
[18] I have carefully considered Mr. Lin's submissions that the visa officer failed to assess his application as required by section 8 of the Regulations. I can find no reviewable error in the visa officer's assessment conducted according to the factors set out in Schedule I to the Regulations. There was no request for the exercise of discretion pursuant to subsection 11(3) of the Regulations and nothing on the record which, in my view, required the visa officer to consider the exercise of positive discretion.
[19] The visa officer did consider the job offer Mr. Lin presented from the "Cast Ocean Seafood Restaurant", in fact being the East Ocean Seafood Restaurant. The visa officer's evidence with respect to this offer was as follows:
9. Mr. Lin presented a job offer from "Cast Ocean Seafood Restaurant" in Vancouver. He stated that a friend in Vancouver had found him the job. Prior to interview, I called Directory Assistance in Vancouver and found that there is no phone number listed for that restaurant. I asked Mr. Lin if he knew why the restaurant was not listed in the telephone directory. He did not know the restaurant was not listed. He knew Mr. Chen, the signator of the letter, slightly, but his friend had gotten him the job. The letter was dated two weeks prior to interview. I asked Mr. Lin when he had last spoken to his prospective employer and when he had received the letter. He stated that he had spoken to Mr. Chen a month ago, and had received the letter from his friend also about one month prior to the interview. He could not explain why the letter was dated after the date he said he received it.
[...]
27. ... He did not clarify the name of the restaurant. I note that it is odd that a letter allegedly from a restaurant would not spell its own name correctly.
[20] While the visa officer could have called the telephone number listed on the job offer, she was not obliged to. It was, for the reasons given by the visa officer, as set out above, not unreasonable for her to give no weight to the job offer. A credible job offer could and should have been better documented. I do not find that the officer's decision was improperly tainted by the view that the restaurant was not listed in the telephone directory.
[21] Because the decision of the visa officer that Mr. Lin had not demonstrated that he intended to and had the ability to establish or purchase a business in Canada was one reasonably open to her on the record, this application for judicial review should be dismissed.
[22] Mr. Lin, through his counsel, raised a procedural issue arising out of the refusal of the visa officer, on the advice of counsel, to answer questions put to her on cross-examination. Mr. Lin asked, as I understand it, for a declaration that visa officers should be obliged to answer any and all questions posed to them on cross-examination. An analogy was drawn with subsection 9(3) of the Immigration Act, R.S.C. 1985, c. I-2 which requires an applicant for admission to Canada to answer truthfully all questions put to that person by a visa officer.
[23] Rule 95(2) of the Federal Court Rules, 1998 permits a person being cross-examined on an affidavit to answer a question that is objected to, subject to the right to have the propriety of the question determined on motion. Undoubtedly, counsel will adopt this practice where there is real doubt as to the propriety of a question. Where counsel is not in doubt as to the impropriety of a question it is, in my view, wholly proper for counsel to instruct the witness not to answer the question. If a witness, on the advice of counsel or otherwise, improperly refuses to answer a question the Court retains discretion to sanction improper behaviour with costs or, in an appropriate case, to draw an inference from the refusal to provide an answer to a legitimate question. There is no basis on which the declaration sought can or should be given. As I observed during oral argument the declaration requested carries with it the potential for great mischief or vexation.
[24] As the applicant has not been successful there is no need to consider his request for costs. No serious question for certification was posed by counsel on the issues I have found to be determinative.
ORDER
[25] IT IS THEREFORE ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"