Date: 20020705
Docket: IMM-2081-01
Neutral citation: 2002 FCT 749
BETWEEN:
HUANG KUEI-HUI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of Norman Barnes, Designated Immigration Officer ("DIO") at the Canadian Consulate General in Seattle Washington, dated April 10, 2001, refusing the applicant's application for permanent residence in Canada under the self-employed category.
[2] The applicant is a Buddhist nun from Taiwan. In 1999, she purchased a house in Canada and established the Bilingual Buddhist Association (the "association") to teach, educate and guide those involved or interested in Buddhism. In her application, she stated that her intended occupation was president of the association.
[3] The applicant was assessed against the regulatory definition of a self-employed person. The DIO concluded that there was no evidence to suggest that the applicant had established or intended to establish a business that would generate economic activity and enable her to create her own employment in Canada.
[4] The applicant was also assessed according to the selection criteria for the independent class of immigrants as a securities analyst or broker and as a religious worker. She did not obtain sufficient units of assessment in those categories.
[5] The applicant submits that there is nothing in the definition of self-employed person that would exclude the establishment of a large charity which does not make profit but does provide an employment opportunity for the person starting this venture. The DIO has so narrowed his focus of the definition of self-employed person to that of commercial profits that he has unduly fettered his discretion.
[6] A self-employed person is defined in subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172:
| "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 |
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« 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. |
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[7] Section 5.1 of the Overseas Processing Manual (OP) states that "[t]he terms establishment of a business, purchase of a business, and employment opportunity should be interpreted as for entrepreneurs."(OP, section 5.1 at 25).
[8] These terms are defined as follows for entrepreneurs: "The establishment or purchase of a business should have an expectation of on-going commercial activity and of profit generation. The entrepreneur should hold a significant degree of control in the business." (OP, section 3.1 at 8).
[9] Thus, I am satisfied the DIO was correct in applying the definition of business under the entrepreneur category to the self-employed category.
[10] It follows from these definitions that the lack of profitability is a relevant factor for the purposes of assessment under the self-employed category. Notwithstanding the fact that the applicant's business was a non-profit organization, the CAIPS notes show that the DIO carefully studied her situation but found no evidence that she could generate an income that would enable her to support herself. I am satisfied that the DIO did not misuse his discretion in concluding that the applicant's self-employment income would not be sufficient.
[11] I find that the DIO's decision was reasonable. This is not a case where the intervention of this Court is warranted. The application for judicial review is dismissed.
(Sgd.) "Danièle Tremblay-Lamer"
J.F.C.C.
Vancouver, British Columbia
July 5, 2002.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2081-01
STYLE OF CAUSE: HUANG KUEI-HUI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: July 4, 2002
REASONS FOR ORDER : TREMBLAY-LAMER J.
DATED: July 5, 2002
APPEARANCES:
Mr. Kenneth S. Specht for Applicant
Ms. Helen Park for Respondent
SOLICITORS OF RECORD:
Kenneth S. Specht
Barrister & Solicitor
Vancouver, B.C. for Applicant
Morris Rosenberg
Deputy Attorney General of Canada for Respondent