Date: 20010824
Docket: IMM-3797-00
Neutral citation: 2001 FCT 947
BETWEEN:
GUO HUI KE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.A.:
[1] This is a judicial review of a decision of a visa officer denying the application of the applicant for permanent residence as a self-employed Chinese herbalist. The visa officer determined that the applicant did not meet the definition of self-employed person because he had not shown to the visa officer's satisfaction that he had "the ability to become successfully established as a self-employed person in his proposed occupation or business in Canada". No issue has been raised by the applicant that the words used by the visa officer in his decision are taken from subsection 8(4) of the Immigration Regulations pertaining to whether 30 additional units of assessment should be awarded to self-employed applicants, and not from the definition of "self-employed person" in subsection 2(1) of the Regulations. For the purposes of this decision I accept that the visa officer was of the opinion that the applicant did not have the ability to establish a business in Canada that will create an employment opportunity for himself.
[2] The applicant says that the visa officer placed undue emphasis on his lack of previous business experience as a self-employed Chinese herbalist. The applicant concedes that he did not have prior business experience because he worked for a Chinese government owned company, the Guangshou First Architectural Engineer Co. He looked after employees, their spouses, dependants and retired staff. His salary was paid by the company and he had no private practice other than some relatives and friends.
[3] However, the applicant says that he had an offer from a company in Toronto involved in the sale of traditional Chinese medicine. He got the offer through his brother. The arrangement was that he would locate his clinic in the back of one of the company's stores. He would remit a portion of the fees he received to the company and would encourage patients to purchase medicine from the company. He told the visa officer that he would see about 20 patients per day.
[4] The visa officer considered that the applicant was relying heavily on a third party to bring him clients. He did not have a viable backup plan in the event the arrangement fell through, proved unworkable or fell short of expectations. He was not convinced that the clientele would be sufficient for the applicant to make a living.
[5] The applicant seeks to characterize the visa officer's assessment as emphasizing the applicant's lack of prior business experience. However, the evidence would appear to show that the visa officer was primarily concerned about the viability of the applicant's plan as he proposed it. These are issues that go to the applicant's ability to establish a business in Canada that will create an employment opportunity for himself. While the visa officer noted the applicant's lack of prior business experience, I do not see on the record before me that the visa officer placed undue emphasis on this issue such as to render the decision unreasonable.
[6] The applicant says that in view of the offer the applicant had, it was unfair for the visa officer to be concerned that the applicant had no backup plan. The argument is that the absence of a backup plan can always be used to defeat an application even when the application is based on a solid business arrangement. If it could be shown that absence of a backup plan was simply being used by the visa officer as a means rejecting an otherwise meritorious application, an issue of bad faith might arise. Each case must be considered on its own facts.
[7] In the present case, the applicant's evidence is that there are 2000 Chinese herbalists in Canada. Nonetheless, apparently the company with which he has an arrangement has kept a position open for him for four years. It has not been filled pending his coming to Canada. This raises the question about the level of competition in the business, why the position has not been filled and the potential for the business. In these circumstances, I do not think it was unwarranted for the visa officer to have been concerned about the viability of the applicant's plan and to have raised the question of a backup plan.
[8] The applicant says the visa officer failed to assess whether the applicant's business would make a significant contribution to the economy or the cultural or artistic life of Canada as provided in the definition of "self-employed person" in the Regulations. However, once the visa officer determined that the applicant could not become successfully established in a business, that ended the matter. The question of whether a business will make a significant contribution does not arise if it found that the applicant does not have the ability to establish the business in the first place.
[9] The applicant says the visa officer placed undue emphasis on the applicant's limited knowledge of English. The visa officer noted that the applicant's very limited knowledge of English would be a handicap in developing a clientele outside the Chinese community. In a letter from the applicant's immigration consultant that accompanied the applicant's application, the consultant stated:
It is widely noted that there is a strong and growing demand for herbal and other alternative forms of medicine in Canada. This demand transcends the confines of the Chinese Canadian community and has taken root in the wider populace.
[10] In view of the consultant's representations, it was not unreasonable for the visa officer to have regard for the applicant's limited knowledge of English. Nothing in the record suggests the visa officer placed undue emphasis on this factor.
[11] I have not been persuaded that the visa officer's decision was unreasonable. The judicial review will be dismissed.
"Marshall Rothstein"
Judge
Toronto, Ontario
August 24, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3797-00
STYLE OF CAUSE: GUO HUI KE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, AUGUST 22, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN J.A.
DATED: FRIDAY, AUGUST 24, 2001
APPEARANCES: Mr. David Bruner
For the Applicant
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD: Hoppe Bruner
Barristers & Solicitors
25 Isabella Street
Toronto, Ontario
M4Y 1M7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010824
Docket: IMM-3797-00
BETWEEN:
GUO HUI KE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
Date: 20010824
Toronto, Ontario, Friday the 24th day of August, 2001
PRESENT: The Honourable Mr. Justice Rothstein
BETWEEN:
GUO HUI KE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The judicial review is dismissed.
"Marshall Rothstein"
Judge