Date: 20020322
Docket: IMM-5221-99
Neutral citation: 2002 FCT 323
BETWEEN:
LIANGJI TIAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 seeking, inter alia, an order quashing the decision of the visa officer dated September 15, 1999, wherein the applicant's application for permanent residence was refused. The applicant applied for immigration as a chef in the self-employed person category.
[2] The applicant seeks an order of certiorari setting aside the above decision. The applicant seeks an order of mandamus requiring the respondent to approve the immigrant visas for the applicant and family or to bear all costs for a re-interview. The applicant seeks an order of mandamus to allow counsel to attend and/or allow the recording of any subsequent immigration interviews. The applicant seeks a declaration that the visa officer must give "full faith and credit" to applicants who have been employed outside their home country and have accumulated the appropriate amount of assets for their family size.
[3] The applicant seeks costs as legal fees in the amount of $5,100 plus examination expenses.
Background
[4] The applicant is a citizen of China, where his wife and three dependant children reside. The applicant has been residing in the United States since November, 1993. The applicant has been working at a fast food Chinese restaurant in Washington D.C., called New Dynasty Chinese Restaurant, since 1996.
[5] The applicant attended a personal interview on September 8, 1999. The decision of the visa officer was communicated to the applicant by letter dated September 15, 1999. The visa officer assessed the applicant as a self-employed chef as follows:
Age 10
Occupational Demand 10
S.V.P. 07
Experience 00
Demographic Factor 08
Education 13
English 00
French 00
Personal Suitability 02
Self-Employed Units 00
Total 50
[6] Under the self-employed category, a visa officer can award an additional 30 units of assessment to an immigrant who intends to be self-employed where the immigrant satisfies the visa officer that the immigrant can become successfully established in the immigrant's occupation or business in Canada. In the letter communicating the decision, the visa officer stated:
I have not awarded you the 30 unit bonus because you were unable to demonstrate that you have the ability to successfully establish as a self employed chef during your personal interview. While you have several years experience as a cook, you have no evidence you will be able to establish yourself on a professional basis in Canada. You confirmed at interview, that you have not researched the labour market in Canada, nor do you have a business plan. You have not established any relationships with business contacts in Canada, such as suppliers, wholesalers, etc. and your only response to my concerns regarding your lack of preparation was that you have friends there who will help you. You appear to have no plans on your own. You present only a bank statement from a US bank which shows you have $17000 and you claim you have another $40000 in China. However, you did not provide any evidence of your assets in your home country and you could not provide any accounting of the source of your funds in the United States.
I have also considered your application according to the criteria established for independent class of immigrants. Pursuant to section 8(1) of the Immigration Regulations, independent applicants are assessed on age, occupational demand, vocational preparation, education, experience, Canadian demographic factors, knowledge of English and French languages and personal suitability. I have assessed you as a Cook (NOC 6241) and you failed to obtain sufficient units of assessment as required in the Regulations.
Applicant's Submission
[7] The applicant submitted eight issues in this judicial review and they are reproduced as the issues in this judgment.
[8] The applicant submits that the visa officer committed a legal error by requiring the applicant to prove how he acquired his assets, rather than simply prove that he possessed the assets. The applicant submits that the Immigration Regulations, 1978, S.O.R./78-172 only require ‘investors' not self-employed applicants to prove the source of their assets.
[9] The applicant submits that the Court should declare clearly and unequivocally that it will not tolerate officers' applying the investor-category requirement to prove the source of assets upon self-employed applicants for whom there is no credible evidence that their assets were acquired through criminal activity. The applicant submits that ownership, not origin, is the proper burden of proof.
[10] The applicant admits that the rejection of the applicant's assets made it impossible for the applicant to prevail.
[11] The applicant submits that the visa officer's assessment of personal suitability cannot be allowed to stand because it is predicated on an improper disallowance of assets, the applicant was assessed as self-employed and not as a cook, there was no rationale provided, and it is perverse given his proven ability to support himself in an "English-speak milieu".
Respondent's Submissions
[12] The respondent submits that the visa officer did not err in rejecting the applicant's application for permanent residence in Canada. The respondent submits that special reasons do not exist to award costs against the respondent.
Issues
[13] The applicant has raised the following issues
1. Did the visa officer arbitrarily reject the applicant's assets and therefore commit a reviewable error?
2. Did the visa officer err by awarding the applicant zero points for experience?
3. Did the visa officer err in the assessment of personal suitability?
4. Did the visa officer import extraneous requirements for qualification?
5. Did the visa officer err by assessing the applicant under subsection 2(1) of the Immigration Regulations, 1978, supra rather than section 8 of the Immigration Regulations, 1978, supra?
6. Did the visa officer err by failing to access subsection 11(3) of the Immigration Regulations, 1978, supra?
7. Did the visa officer err by finding no "significant contribution"?
8. Do "special reasons" exist that merit assessing legal fees against the Minister?
Analysis and Decision
[14] Issue 1
Did the visa officer arbitrarily reject the applicant's assets and therefore commit a reviewable error?
I have reviewed the visa officers CAIPS notes and in these notes, the visa officer stated that:
ASSETS: HE HAS $17000USD (ONLY LETTER FROM BANK - NO MONTHLY STATEMENT)
$30000USD (IN BANK IN PRC)
$40000USD (IN BANK IN PRC - NO PROOF)
HE HAS $17000 IN THE USA, NO INDICATION HE CAN TAKE OUT THE MONEY HE HAS IN PRC. AND SINCE HE CANNOT PRESENT ANY BANK STATEMENT - I CANNOT VERIFY THE SOURCE OF THE $17000.
[15] In the refusal letter, the visa officer states in part:
. . . You present only a bank statement from a US bank which shows you have $17000 and you claim you have another $40000 in China. However, you did not provide any evidence of your assets in your home country and you could not provide any accounting of the source of your funds in the United States.
[16] The visa officer's hand written notes at page 25 of the tribunal record state that the applicant will bring the amounts of $40,000 USD and $38,000 from the PRC with him. As well, the applicant will also take with him $17,129 from the U.S. The notes state "no restrictions" which I take to mean no restrictions on the transfer of funds.
[17] As I see it, the visa officer was confused with respect to the amount of funds that the applicant had available to him to come to Canada. I cannot resolve this from the record. The visa officer also stated that the applicant "could not provide any accounting of the source of your funds in the United States". The Immigration Regulations, 1978, supra require that an investor show the source of his or her net worth in that their net worth must have been accumulated by their own endeavours. There is no such requirement for a self-employed applicant. By imposing this extra requirement on the applicant, the visa officer made a reviewable error of law. Because of this and the confusion as to the amounts of funds that the applicant had available to take to Canada, I am of the view that the whole application should be reassessed by a different visa officer. In this case, I cannot determine what effects the confusion may have had on the remainder of the visa officer's decision. The application for judicial review is therefore allowed.
[18] I am not prepared to grant the other relief requested by the applicant.
[19] Because of my ruling on Issue 1, I need not deal with the other issues raised by the applicant, except Issue 8 which deals with costs.
[20] Issue 8
Do "special reasons" exist that merit assessing legal fees against the Minister?
I am not prepared to assess legal fees against the Minister. I see no reason from the record in this case to make such an award. Accordingly, no costs shall be awarded.
[21] The parties shall have one week from the date of these Reasons to submit any proposed serious question of general importance for my consideration.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
March 22, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5221-99
STYLE OF CAUSE: Liangji Tian and the Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 13, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE O'KEEFE DATED: March 22, 2002
APPEARANCES:
Mr. Timothy E. Leahy FOR APPLICANT
Mr. Matthew Oommen FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Timothy E. Leahy FOR APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada