Federal Court Decisions

     IMM-2757-96

BETWEEN:

     HO WING YAU STEPHEN,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

HEALD, D.J.

    

     This is an application for judicial review of the decision of visa officer, Peter Lancefield, dated July 2, 1996, wherein the applicant's application for permanent residence in Canada was refused.

FACTS

     The applicant, a citizen of Hong Kong, applied for permanent residence in Canada through the Canadian Embassy in Thailand in March of 1995. The applicant wished to be considered in the self-employed category, or in the alternative, the entrepreneur category. His application was refused by letter dated July 2, 1996.

     The visa officer concluded that the applicant had never been self-employed nor had he run a business. On this basis, the visa officer held that the applicant did not have the ability to establish a business that would make a significant contribution to the economy. The applicant intended to establish a photo laboratory. In the view of the visa officer, the applicant could not make a significant contribution to the economy or to artistic and cultural life through the sale of his photographs. The visa officer made the further observation that the applicant had not won a photographic award since 1976 and did not sell his photographs to a significant degree.

ISSUES

1.      Did the visa officer err in law by basing his decision on erroneous findings of fact?

2.      Did the visa officer fetter his discretion and make an error of jurisdiction by incorrectly interpreting the definition of "self-employed person" as set out in subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations")?

ANALYSIS

     As noted above, the visa officer's refusal letter stated unequivocally that the applicant had never been self-employed or ran a business. This statement is clearly wrong since it is not supported by the record. The applicant's uncontradicted evidence was to the effect that he had work experience in a photo lab as a dark-room technician, and that he had work experience teaching small groups. On this record, the visa officer clearly erred in concluding that the applicant had no self-employment experience.

     "Self-Employed Person" is defined as follows:

"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.1

     It is clear on the evidence that the visa officer interpreted the Regulations as reserving the self-employed category for "extraordinary" individuals. The visa officer applied a standard which, in ultimate effect, required that a person applying under the self-employed person category be experienced and established as a self-employed person and/or be internationally recognized in their artistic or cultural field.

     While international recognition and establishment as a self-employed person have been recognised to be relevant factors, they are not necessary conditions for consideration under the self-employed category, see Ho v. Canada (M.E.I.) (1989), 8 Imm.L.R. (2d) 38 (F.C.T.D.), Grube v. Canada (M.C.I.), (1996), 34 Imm.L.R. (2d) 219, and Yang v. Canada (M.E.I.) (1989), 27 F.T.R. 74, 8 Imm.L.R. (2d) 48, 36 Admin.L.R. 235.

     The respondent argued before me that the visa officer did not make self-employment experience a pre-requisite for positive consideration. However, one need only turn to the refusal letter itself to see that the visa officer did misinterpret the Regulations. That letter stated:²

Since you have never been self-employed or run a business, I have no evidence that you have the ability to establish a business which would make a significant contribution to the economy.

     Overall, I am satisfied that the visa officer misinterpreted the Regulations by applying an unacceptably high standard in determining whether the applicant should be landed under the self-employed category.

CONCLUSION

     For the foregoing reasons, I have concluded that the decision of the visa officer is based on an erroneous finding of fact and a misinterpretation of subsection 2(1) of the Regulations. Accordingly, the application for judicial review is allowed. The decision of Peter Lancefield, dated 2 July 1996, is set aside and the matter is returned to a different visa officer for rehearing and redetermination on a basis not inconsistent with these reasons for order.

CERTIFICATION

     The applicant proposed the following question for certification:

Is it an error of law and a fettering of the discretion for a visa officer to interprete [sic] the definition of "self-employed person" in subsection 2(1) of the Regulations to require the prospective immigrant to have extraordinary ability in his or her business or occupation in order to establish that he or she will make a "significant contribution to the economy or the cultural or artistic life of Canada"?

     The respondent did not propose a question, but took the position that there is no serious question of general importance.

     In the circumstances of this case, I am not prepared to certify any serious question of general importance pursuant to section 83 of the Immigration Act.

     Accordingly, no questions are certified.

COSTS

     The applicant requested an award of costs. However, as the applicant has not established any special reasons justifying such an award, no costs are awarded.³

                         Darrel V. Heald

                         Deputy Judge

Ottawa, Ontario

September 10, 1997

                    

__________________

¹      See Subsection 2(1) - Immigration Regulations , 1978, SOR/78-172

²      See applicant's record, at page 72.

³      See Federal Court Rule 1618.