Date: 20011114
Court File No.: IMM-2312-00
Neutral Citation: 2001 FCT 1250
Ottawa, Ontario, this 14th day of November, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
TENG HUI HO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is a businessman from Taiwan who seeks judicial review of a decision of a visa officer at the Canadian Consulate in Hong Kong dated March 20, 2000, wherein the applicant was denied his application for permanent residence in Canada as a "self employed person".
[2] His evidence is that he worked for a company that specialized in manufacturing and trading in hand tools established by his father-in-law and was in charge of the purchasing and marketing aspects of the company. In 1981, the company increased production and began doing business in the international market place. In 1982, the company was restructured and the applicant took over the responsibilities previously held by his father-in-law. He supervised three team leaders and became responsible for quality control and business negotiations in Taiwan. In 1992 he was elected to the Board of Directors. The applicant conducted business in Canada by selling tools to a Canadian company located in Montreal. The profits of the applicant's company averaged between $50,000 to $60,000 per year for the last five years. The applicant concedes that the company's profits are marginal and falling because of increased competition. His annual salary is in the area of $25,000. His net worth, mostly earned by his wife who works for an insurance company, is about $2,000,000, $200,000 of which is liquid, the remainder is made up of two properties. His wife earns an annual salary of about $135,000.
[3] On October 27, 1998, the applicant applied for permanent residence in Canada at the Canadian Consulate in Hong Kong. He made a $100,000 investment in Great Lakes College of Toronto on November 8, 1998. In the same month he visited two companies in Canada to assess the market situation for the sale of tools in Canada. He attended a seminar offered by the government of Ontario for business immigrants, consulted a lawyer and visited rental space. He also filed a business plan with his application. It was his intention to open a business that would be a sole proprietorship involved in the import-export trade of various machine parts, hand tools, hardware, parts and other related products.
[4] On March 2, 2000, the visa officer interviewed the applicant through an interpreter fluent in Mandarin and English. On March 20, 2000, the officer held that the applicant did not meet the definition of self-employed persons as defined in subsection 2(1) of the Immigration Regulations, 1978, SOR/78-1/72 ("Regulations"), since the applicant did not show to the officer's satisfaction that he had the ability to become successfully established as a self-employed person in his proposed occupation or business. The applicant earned a total of 51 units of assessment including 6 units out of a possible 10 for the personal suitability factor.
[5] At the hearing, counsel for the applicant abandoned most of the arguments he advanced in his memorandum including the argument that the visa officer was "both unfamiliar and inexperienced in the question he had to decide." The applicant limited his argument to one issue, that the visa officer erred by taking into account an "irrelevant consideration", namely, that the applicant did not display any dynamism at the interview. The applicant submitted that the visa officer was improperly concerned with and placed great emphasis on his lack of so-called "dynamism" which he equated with an applicant's overall demeanor, how the applicant looked and behaved during the course of the interview. The applicant argues that neither the Immigration Act, 1985, c. I-2 ("Act"), nor the Regulations under the Act refer to "dynamism" as one of the criteria for assessing an applicant. The applicant further argues that the visa officer could not reasonably assess answers to his questions due to the participation of an interpreter and that the visa officer could not reasonably fail the applicant for want of "dynamism" and at the same time award a passing score of 6 units out of 10 for personal suitability taking into consideration his motivation, adaptability, initiative and resourcefulness. Finally the applicant argues that the visa officer erred in rejecting the application since he expressed no concerns about whether the applicant could establish and sustain himself in Canada, in the economic sense.
[6] Since the Supreme Court of Canada decision in Baker v. Canada (M.C.I.), [1999] 2 R.C.S. 817, this Court has consistently adopted the standard of reasonableness simpliciter as the appropriate standard for reviewing a visa officer's decision. (Arora v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.845, p.2 at paragraph 8.)
[7] My colleague Mr. Justice Pinard in Tariq Hamid v. M.C.I. (F.C.T.D.) October 24, 1997, IMM-183-97, held that a visa officer, as the primary finder of fact, is in the best position to evaluate an applicant's demeanour, reactions, and responses to questions put to him or her. Such findings will therefore be accorded considerable deference. In Kulbhushan Kumar Kaura v. M.C.I. (1997), 125 F.T.R. 227 at 229 (F.C.T. D.), the visa officer found that the applicant did not present himself favourably at interview, seemed unprepared and answered the visa officer's questions in a vague, casual and indifferent manner. The Court held that the visa officer could properly conclude that the applicant would be unable to establish a successful business in Canada. In Dan Remus Covrig v. M.C.I. (1995), 104 F.T.R. 41; (1995), 35 Imm.L.R. (2d) 128, the visa officer, despite awarding the applicant 71 units if assessment, concluded nonetheless that he would be unable to successfully establish himself in Canada. In that case the visa officer took into consideration the applicant's preparation for the interview, his attitude, personality and demeanour during the interview. The visa officer found that he projected a distinct lack of energy and dynamism. My colleague, Mr. Justice Muldoon, rejected the applicant's argument that the visa officer took irrelevant considerations into account by considering the applicant's lack of energy and dynamism and found that the considerations cited were all relevant to the question of successful establishment in Canada, particularly the economic aspect thereof. I have carefully reviewed the transcript of cross-examination of the visa officer as well as other materials submitted and conclude that the applicant's argument is without merit. I find that the applicant's " dynamism", as explained by the visa officer, was not an irrelevant consideration in considering whether he could establish a successful business in Canada. This was not the only factor considered by the visa officer and I find that, considering the evidence that was before the officer, his conclusion was reasonably open to him.
[8] To be awarded 6 units out of a possible 10 for personal suitability is not necessarily inconsistent with the visa officer's finding. I accept the respondent's submission that the award of an average score on personal suitability does not necessarily establish that the person is dynamic. I find no merit in the applicant's argument.
[9] Finally the applicant argues that the visa officer erred in failing to assess the applicant's ability to "purchase" a business in Canada after finding he did not have the ability to "establish" a business in Canada. In Bakhshaee v. Canada (Minister of Citizenship and Immigration) (1985), 45 Imm. L.R.(2d) 196 (F.C.T.D.), Mr. Justice Décary, (sitting as a Judge of the Trial Division) held that if an applicant puts forward information in regard to only one of the options in the definition, the visa officer need not examine the other two. It is my view that this principle applies to the case at bar. The applicant submitted that he intended to "establish" a business in Canada. However, in his application and supporting documentation, no reference is made to his intention to purchase a business in Canada, and at the interview, the intention to "purchase" a business in Canada is also not mentioned. There must be a factual basis upon which such an intention can be established before a visa officer is required to evaluate the option. I can find none. I therefore find that no reviewable error was committed by the visa officer by failing to assess the applicant's ability to "purchase" a business in Canada.
[10] The definition in the Regulations requires that a "self-employed person" have, inter alia, the ability to establish a business in Canada that will create an employment opportunity for himself. I am of the opinion that the visa officer reasonably concluded, on the basis of the applicant's business experience, the interview and all other factors that the applicant did not meet the definition of a "self-employed" person. I find no error in the visa officer's evaluation that would warrant the intervention of this Court.
[11] For the above reasons this application for judicial review will be dismissed.
[12] The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge