Date: 19990611
Docket: IMM-3296-98
BETWEEN:
CHIN-CHUNG LIN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
REED J.
[1] This is an application for judicial review of the decision of visa officer, Sara Trillo, dated June 1, 1998, which held that the applicant did not meet the requirements set out in the Immigration Act, R.S.C. 1985, c. I-2 and Immigration Regulations, 1978, SOR/78-172, for admission into Canada as a permanent resident.
[2] The applicant, a citizen of Taiwan, is a Chinese medical practitioner/acupuncturist and sought admission to Canada under the self-employed category. Subsection 2(1) of the Regulations sets out the definition of "self-employed person". It reads:
| "self-employed person" means 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. |
[3] The refusal letter sent to the applicant, dated June 1, 1998, reads as follows:
| After a careful and thorough review of your application, and as discussed with you at your interview, I regret to inform you that your application has been refused since, in my opinion, your intended business in Canada would not make a significant contribution to the economy nor to the cultural or artistic life of Canada. Furthermore, based on all the information you have provided, I am not satisfied that you have sufficient business expertise to be able to become successfully established in your proposed business venture. |
| I do not see from the documents that you have provided and from what you indicated at your interview that you have any experience as a business person. You have been unable to substantiate the fact that you ever ran a successful business. At interview, you had no supporting documents proving that you actually ran a profitable business or that you actually had been engaged in commercial transactions. In my opinion, you do not have the in depth experience, the skills, the expertise nor the ability to be able to establish successfully as self-employed. |
| Due to all of this, I am not satisfied that you would be able to become successfully established in Canada in your proposed business venture. |
[4] The applicant seeks to have this decision set aside on four grounds: (1) the visa officer did not think the applicant was an experienced acupuncturist when, in fact, he is very experienced and well known; (2) when the visa officer made her decision, she did not have documents before her that the applicant had sent; (3) the visa officer erred in deciding that the applicant had insufficient business experience, and in any event lack of business experience should not be over-emphasized; (4) the visa officer erred in finding that the applicant's proposed business, an acupuncture clinic, would not make a significant contribution to the economy of Canada.
[5] While the visa officer's CAIPS notes indicate that she doubted the applicant's experience as an acupuncturist (those notes did record that he was a member of the Canadian Acupuncturists and T.C.M. Alliance of British Columbia), the decision letter sent to him does not mention this as a reason for the refusal. The visa officer's interview of the applicant, and the writing of the CAIPS notes occurred on April 29, 1998. The refusal letter was written on June 1, 1998. It is a fair reading of those documents, that whatever may have been the visa officer's initial thoughts about the applicant's lack of experience as an acupuncturist, by June 1, 1998, she had disabused herself of them. The final decision was not based on a finding that the applicant lacked qualifications or experience as an acupuncturist.
[6] With respect to the documents that were not received by the visa officer, they attest to facts that the visa officer does not appear to have doubted, that is his academic qualifications and that he was a partner in a Chinese medical clinic, owned by his father-in-law, who, being over 80 years of age, remained as the titular head only. Thus, the non-arrival of the documents was not significant.
[7] A reading of the refusal letter that was sent to the applicant makes it clear that the decision was based on the conclusion that the applicant had not demonstrated that he had the "ability to establish or purchase a business in Canada that will ... make a significant contribution to the economy ... of Canada". In her affidavit, the visa officer states:
| Following the interview, I reviewed the Applicant's complete file and came to the conclusion as I had during the Applicant's interview, that he did not meet the requirements of a self-employed person, as that term is defined in the Immigration Regulations, 1978 ("the Regulations"). While the Applicant presented documents attesting to his work experience as a medical doctor and as a Chinese medicine practitioner, he did not present any documents that indicated that he had any past business record, any management skills, or any business ability. The Applicant had never run a business and was unable to demonstrate that he had ever contributed to the success of any business. Furthermore, based on the information before me, there was no evidence that the Applicant's proposed business would make any specific contribution that would enhance the economy or the cultural or artistic life of Canada. |
[8] Courts, of course, do not interfere lightly with decisions of administrative decision-makers. They do not quash a decision merely because they might have reached a different conclusion. Where a decision-maker has exercised statutory discretion in good faith, and in accordance with the principles of natural justice, and where reliance was not placed upon considerations irrelevant or extraneous to the statutory purpose, the courts do not interfere. (See Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at 7-8, and Lim v. Canada (M.E.I.) (1989), 8 Imm. L.R. (2d) 261, affirmed (1991), 12 Imm. L.R. (2d) 161 (F.C.A.).
[9] The visa officer concluded that the applicant did not have the ability to establish a business due to the fact that there was no documentary evidence submitted by the applicant demonstrating that he had ever run a business, or participated in the management of a business, or that he had any management skills, or that he possessed any business ability. The visa officer accepted that the applicant was a partner in the Te Chun Tang Clinic, a medical clinic that he did not establish and in which he had been working in a self-employed capacity for only a short time. The conclusion the visa officer reached was reasonably open to her on the record.
[10] It was also reasonably open to the visa officer to conclude, on the basis of the evidence before her, that the applicant's proposed business would not provide a significant contribution to the economy of Canada. The applicant did not provide any evidence of his business earnings; he only provided evidence of his income earned as a staff medical doctor working at a hospital. He did not present to the visa officer any market research or other documents to demonstrate what he expected the earnings of his proposed business would be. Given the paucity of evidence before the visa officer in this regard, it cannot be said that the visa officer exercised her discretion in an unreasonable way.
[11] Accordingly, for the reasons given, I must dismiss this application.
(Sgd.) "B. Reed"
Judge
Vancouver, British Columbia
11 June 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: June 10, 1999
COURT NO.: IMM-3296-98
STYLE OF CAUSE: CHIN-CHUNG LIN
v.
MCI
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF REED J.
dated June 11, 1999
APPEARANCES BY:
| James Henshall for the Applicant |
| Paige Purcell for the Respondent |
SOLICITORS OF RECORD:
| James Henshall for the Applicant |
| Barrister and Solicitor |
Morris Rosenberg for the Respondent
Deputy Attorney General
of Canada