Date: 20010117
Docket: IMM-295-99
BETWEEN:
SHU-YEE CHENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Mr. Shu-Yee Cheng, the applicant, applied unsuccessfully for permanent residence in Canada as a Chef in the category of Self-Employed. In this application he seeks an order under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 as amended, setting aside the decision of Moira L. Escott ("visa officer") which refused his application for permanent residence.
[2] Neither the visa officer nor Mr. Cheng submitted affidavits in this application. Mr. Cheng's application was supported by the affidavit of his immigration consultant, Ms. On, who the tribunal record shows submitted Mr. Cheng's application for permanent residence and communicated with the visa post concerning the application, and to whose address the refusal letter was sent.
[3] Rule 306 of the Federal Court Rules, 1998, made applicable to applications for judicial review of a decision of a visa officer by Rule 4(2) of the Federal Court Immigration Rules, 1993, requires that applicants file affidavits in support of the application. Rule 81 of the Federal Court Rules, 1998, requires affidavits to be confined to facts within the personal knowledge of the deponent.
[4] On the facts of this case, having regard to the involvement of the deponent in the immigration consultant in the process, I am not prepared to dismiss the application on the basis of the applicant's failure to file his own affidavit. The affidavit sworn by Ms. On is sufficient to establish the fact of the application and its rejection.
[5] However, it follows that the only evidence properly tendered on the applicant's behalf is that of which Ms. On had personal knowledge. I have only had regard to such evidence. To that one proviso is added. It is settled law that review of a decision of a federal board, commission or other tribunal should proceed on the basis of the evidence before the decision-maker, unless additional evidence is otherwise admissible for the purpose of establishing bias, breach of the duty of fairness, or the like. It follows that Ms. On's evidence about Toronto restaurants, Toronto's Cantonese-speaking community, and visa officers and their practises while perhaps within her personal knowledge is not properly admissible as it was not established that such evidence was before the visa officer.
[6] Finally, with respect to the evidentiary record before the Court, my view is that in the absence of the visa officer's affidavit I may have regard to the refusal letter and the CAIPS notes as constituting reasons for the impugned decision. The CAIPS notes and any handwritten notes of the visa officer are also admissible at the instance of the applicant as admissions against interest. See: Tajgardoon v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1450, IMM-2063-99 (September 1, 2000) (F.C.T.D.).
[7] The evidence properly before me does establish that Mr. Cheng's application was assessed in the self-employed category, and was refused on the ground that he failed to satisfy the visa officer that he met the definition of a self-employed person. The refusal letter in material part was as follows:
| Section 2(1) of the Immigration Regulations, 1978, defines a "self-employed person" as "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". |
| In my opinion you have failed to meet the above definition. You were unable to satisfy me that you have the ability to operate a business in Canada. You have no working knowledge of the English language and have never visited Canada. Although it appears you have operated a fast food restaurant in Puerto Rico, you were unable to discuss any details regarding operating a restaurant business in Canada. You stated that you felt that you would have to rely on family to assist you in establishing a business in Canada. You stated that you would most likely have to first work in someone's restaurant to learn about the restaurant business in Canada. |
[8] As it appears from the refusal letter, the visa officer accepted that Mr. Cheng operated a fast food restaurant in Puerto Rico and that he wanted to pursue the restaurant business in Canada. However, the visa officer concluded that Mr. Cheng failed to satisfy her that he had the ability to establish a restaurant in Canada notwithstanding that he operated a restaurant in Puerto Rico. While the visa officer stated she was not satisfied that the business would make a significant contribution to the economy of Canada, no reasons were given for that conclusion.
[9] The visa officer stated that she was not satisfied of Mr. Cheng's ability to operate a business in Canada because he:
| (i) had no working knowledge of the English language; |
| (ii) had never visited Canada; and |
| (iii) was not able to discuss any details regarding operating a restaurant in Canada, and said that he would have to rely on family and would likely have to work first in someone's restaurant to learn the restaurant business in Canada. |
[10] The CAIPS notes and the officer's handwritten notes reflect that the visa officer recorded that:
| (a) Mr. Cheng had deposited $380,000 in Canada; |
| (b) Mr. Cheng "may have to work for someone in a restaurant first or work in his sister's restaurant"; and |
| (c) Mr. Cheng employs himself, his wife and four others. |
[11] The reasons of the visa officer reflect little or no consideration of Mr. Cheng's business ability, his assets, or his past record in business. In this context, the immigration manual Overseas Processing (OP) published by Citizenship and Immigration Canada notes that "[a] person's experience or past success in business may be strong indicators of ability to establish a business in Canada. Hands on experience in management may also be an excellent measure of ability..." and that "[a] person's financial assets may also be a measure of intent and ability to do business in Canada. There is no minimum investment level for a self-employed person. The capital required depends on the nature of the business. The applicant must have sufficient funds to create an employment opportunity for himself and maintain himself and his dependants."
[12] In my view, those are matters which are relevant and which on the record before the visa officer ought to have been considered.
[13] The visa officer, in my view, was entitled to consider the impact of Mr. Cheng's lack of working knowledge of English upon his ability to establish a business in Canada.
[14] Having not visited Canada before is certainly not a bar to immigration to this country. On its own this factor is of limited assistance.
[15] As to the remaining factor considered by the visa officer, in Margarosyan v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm. L.R. (2d) 53 (F.C.T.D.), Gibson J. held that as long as an applicant had a bona fide intent to establish a business in Canada it was not necessary that such intention be acted upon immediately on the applicant's arrival in Canada, and that a visa officer erred in importing into the definition of a self-employed person the requirement that a business be established immediately upon arrival. Thus Mr. Cheng's stated intent to work in a restaurant, perhaps his sister's, to learn the Canadian restaurant business similarly should not have formed a basis to refuse the application as long as the visa officer was satisfied of Mr. Cheng's intent to establish a business.
[16] Given that the visa officer was apparently satisfied that Mr. Cheng had the ability to operate a restaurant in Puerto Rico, I am persuaded that it was a reviewable error to deny Mr. Cheng's application on the grounds stated in the refusal letter in circumstances where there is no indication of consideration of other relevant factors as set out above. That is not to say that the decision to deny Mr. Cheng's application may not have been reasonably open to the visa officer to reach. It is simply to say that the decision does not withstand a somewhat probing examination on the basis of the officer's reasons. The failure of the visa officer to give reasons for her conclusion that the business would not make a significant contribution to the Canadian economy means that the officer's decision cannot be upheld on that basis.
[17] In the result, the application for judicial review is allowed and the matter is remitted to a different visa officer for redetermination.
[18] Mr. Cheng sought costs, and an order requiring approval of Mr. Cheng's application or an order in the nature of a direction compelling the respondent to pay all reasonable costs for re-attendance at an interview. An order was also sought in the nature of a direction requiring assessing officers to give "full faith and credit" to certain applicants. I have not been persuaded that the granting of any such relief is warranted in this case.
[19] With respect to certification of a question, counsel may provide written submissions concerning the certification of a serious question within 14 days of the date
of these reasons, after having first disclosed to each other their respective position on the issue. Judgment allowing this application for judicial review will issue following consideration of any submissions provided to the Court.
"Eleanor R. Dawson"
Judge
Winnipeg, Manitoba
January 17, 2001