Federal Court Decisions

Date: 19971117

Docket: IMM-223-97

BETWEEN:

WAI KIN TSOI

Applicant

- and -

THE MINISTER OF CITIZENSHIP & IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

WETSTON J.

[1]      It is clearly not the function of the Court on judicial review of a Visa Officer's decision to substitute its decision for that of the Visa Officer. It would appear from the rejection letter that the only issue is whether the applicant had "the ability to establish or purchase" a business in Canada. The applicant clearly had sufficient capital to establish or purchase a business in Canada.

[2]      The Visa Officer concluded, either on the basis of his intention to become a self-employed swimming coach or to establish an export-import trading house, that:

[3]      I have little doubt that the formulation of an opinion as to whether a person has the required ability is no doubt challenging. However, being self-employed is not a condition precedent to satisfying the definition. While I agree with respondent's counsel that this case can be distinguished from the undue emphasis cases, nevertheless, having been self-employed is not the sole criterion to be considered. The rejection letter considers his "ability" only in relation to whether or not he has worked "wholly or significantly" in a self-employed capacity.

[4]      Accordingly, the application is allowed. The decision, dated December 5, 1996, is set aside and returned to a different Visa Officer for rehearing and reconsideration.

"H. Wetston"

Judge

Toronto, Ontario

November 17, 1997