Date: 20020509
Docket: IMM-4541-00
Neutral citation: 2002 FCT 537
Ottawa, Ontario, Thursday the 9th day of May 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
CUNJIE ZHENG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DAWSON J.
[1] Cunjie Zheng is a citizen of China who went to the United States in 1993. He has continued to reside in the United States, and since obtaining INS employment authorizations commencing in October, 1993 he has worked as a chef in Chinese restaurants. Mr. Zheng lacks durable immigration status in the United States, and applied for permanent residence in Canada in the self-employed category as a Chef, NOC 6241.3.
[2] Mr. Zheng's application was rejected because he only received 55 units of assessment. Mr. Zheng did not receive 30 units of assessment as a self-employed applicant because the visa officer was not satisfied that he would be able to become successfully established in his occupation or business in Canada.
[3] Mr. Zheng was interviewed by the visa officer on March 17, 2000 and the Computer Assisted Immigration Processing System ("CAIPS") notes indicate that from the start the interview did not go well for Mr. Zheng because the visa officer did not believe that he had been in the United States since 1993. After setting out her concerns in that regard, the visa officer wrote as follows:
HAS LIVED AND WORKED IN NEW YORK FROM JAN93 TO FEB94.
WORKED FOR "BAO BAO RESTAURANT" IN BROOKLYN, NY. HAS NO PROOF WITH HIM.
SAYS THAT IT WAS SUCH A LONG TIME AGO.
SUBJ CLAIMS THAT IN FEB94 HE MOVED TO LINCOLN, NC. HAS NO EMPLOYMENT OR REFERENCE LETTER. HE CLAIMS TO HAVE THE PHONE NBR FOR THAT PLACE. ASKED HIM WHY HE DID NOT CALL THE EMPLOYER AND ASK FOR A REFERENCE. SAYS THAT HE HAS NOT BEEN IN CONTACT WITH THEM FOR A LONG TIME.
ASKED FOR ANY ADDITIONAL PROOF OF EMPLOYMENT SUCH AS W-2 FORMS AND/OR INCOME TAX RETURNS. SAYS THAT HIS EMPLOYER USED TO PAY HIM CASH SINCE THE EMPLOYER DID NOT PAY TAX HIMSELF.
SUBJ HAS BEEN LIVING IN ROBINSON, ILLINOIS SINCE JULY96.
HAS BEEN WORKING FOR "YEN CHING" MANDARIN RESTAURANT IN ROBINSON, ILLINOIS SINCE JULY96.
SAYS THAT WHEN HIS BOSS IS NOT AROUND, HE IS THE PERSON IN CHARGE OF THE BUSINESS. HIS BOSS TRAVELS TO TAIWAN VERY OFTEN. HE CLAIMS TO BE IN CHARGE OF THE KITCHEN STAFF AND WAITERS. ORDERS FROM CHINESE FOOD SUPPLIERS.
HAS PRESENTED REFERENCE LETTERS FROM THE OWNER "YEN CHING". HAS THE RESTAURANT MENU.
[4] The interview concluded on the following basis:
INFORMED SUBJ OF MY CONCERNS:
- I AM NOT SATISFIED THAT HE HAS BEEN IN THE USA SINCE JAN93. HIS PASSPORT SHOWS APPLICATION FOR VISA IN 1996 AND IN 1997.
HE COULD NOT EXPLAIN HOW HE COULD HAVE APPLIED FOR CVV IN BEIJING IN 96 IF THE PASSPORT WAS ISSUED IN APRIL 97. STATED THAT HE DOES NOT KNOW ANYTHING HIS WIFE SENT THE PASSPORT TO HIM.
I CAN ONLY CONCLUDE THAT SUBJ ARRIVED IN USA AFTER APRIL 1997.
- NUMBER YEARS OF EXPERIENCE AS A COOK/CHEF CANNOT BE MORE THAN 3YRS IN USA.
- HIS REFERENCE LETTERS WHICH STATED THAT HE HAS WORKED FOR YEN CHING MANDARIN RESTAURANT SINCE JULY96 ARE NOT CREDIBLE
- HE RECEIVED MONEY FROM FRIENDS AND FOR HIS US$4,000 A MONTH SALARY COULD NOT EXPLAIN ACCUMULATION OF FUNDS.
- NO EVIDENCE THAT HE HAS NOT BORROWED FUNDS FROM HIS FRIENDS TO PRESENT PROOF AT INTERVIEW.
- NO EVIDENCE THAT HE HAS THE ABILITY TO ESTABLISH A BUSINESS IN CANADA.
- NO EVIDENCE THAT HE CAN ESTABLISH SUCCESSFULLY WITH HIS DEPENDENTS IN CDA. SUBJ STATES THAT HE CAN PROVIDE ADDITIONAL DOCUMENTS AS PROOF OF HIS ABILITY TO ESTABLISH SUCCESSFULLY IN CDA AS A SELF-EMPLOYED COOK.
GAVE HIM 30 DAYS TO COMPLY.
INFORMED HIM THAT HIS CASE HAS NOT/NOT BEEN APPROVED. I AM GIVING HIM A CHANCE TO ADDRESS MY CONCERNS.
[5] The reference letter found not to be credible by the visa officer stated that Mr. Zheng had worked at the restaurant as head chef since July 1, 1996, that his duties were ordering food, planning the menu, cooking, and supervising ten people. Mr. Zheng was described to be a good worker, reliable, hard-working, and that he "can be able managing when owner not presence" [sic]. Mr. Zheng's salary was stated to be $4,000 dollars (U.S.) per month, and the restaurant was said to seat 100 people.
[6] Within the thirty-day period provided by the visa officer Mr. Zheng did make additional material available which assuaged the visa officer's concerns as to when Mr. Zheng had arrived in the United States. The visa officer's CAIPS notes then reflect the following:
RE-OPENED AND ASSESED [SIC] TODAY.
REVIEWED DOCUMENTS SUBMITTED AFTER INTERVIEW.
AS PER CORRESPONDENCE, BANK STATEMENTS AND EMPLOYMENT AUTHORIZATION CARDS, IT SEEMS THAT SUBJ HAS BEEN IN THE USA BY 1993.
GAVE HIM FULL POINTS FOR WORK EXPERIENCE AS A COOK/CHEF. THERE IS STILL INSUFFICIENT EVIDENCE OF HIS EXPERIENCE AS A RESTAURANT MANAGER.
SUBJ HAS NOT DEMONSTRATED TO MY SATISFACTION THAT HE HAS THE ABILITY TO ESTABLISH A VIABLE BUSINESS IN CANADA.
THERE IS NO CREDIBLE EVIDENCE THAT SUBJ HAS THE ABILITY TO ESTABLISH/PURCHASE A BUSINESS IN CANADA THAT WILL CREATE EMPLOYMENT OPPORTUNITY FOR HIMSELF AND MAKE A SIGNIFICANT CONTRIBUTION TO THE ECONOMIC, CULTURAL OR ARTISTIC LIFE OF CDA.
APPLICATION REFUSED.
[7] Aside from re-stating the requirements of the legislation and noting that she had not been satisfied that those requirements were met, the only reason given by the visa officer for her conclusion that related to the evidence before her was that there was still insufficient evidence of Mr. Zheng's experience as a restaurant manager.
[8] It is of course for visa officers and not the Court to weigh the evidence. However, visa officers are obliged to reach their decisions on the basis of all of the material before them. Independent evidence of Mr. Zheng's ability to manage a restaurant was contained in the letter from his employer, the Yen Ching Mandarin Restaurant, which the visa officer had initially rejected because she took the erroneous view that Mr. Zheng was not in the United States in 1996. There is no suggestion in the CAIPS notes that when the visa officer learned that Mr. Zheng had in fact been in United States since 1993 that she then gave any consideration to the employer's letter and the evidence it contained as to management experience.
[9] That the visa officer did not properly consider the evidence of Mr. Zheng's experience is, in my view, established in the following questions from the visa officer's cross-examination:
90. Q. You can always ask for a time out if you need one. That's not a problem.
A. Thank you. In my notes, I have that he said when his boss is not there, he is in charge of the business.
91. Q. Excuse me, that's at page 161 of our notes.
MS. JAAKKIMAINEN: It's the third page in CAIPS?
THE DEPONENT: I'm looking through the CAIPS notes through the computer, so I'm not sure I have - I don't have the number there.
BY MR. LEAHY:
92. Q. It's page 161 of ours and it's approximately line 28. I'm sorry, continue.
A. And I have there that he claims to be in charge of the kitchen staff and waiters and that he orders food. Does that answer your question?
93. Q. Well, it's all the evidence that I see of any discussion on this, and I'm asking you what your conclusion was.
A. My conclusion is that he claims that's what he is doing.
94. Q. If a computer systems analyst walks into your interview booth and says, I've been doing Y and Z, are you capable of concluding that he has been doing X, Y and Z, or do you simply say he claims he does it and let it go at that?
A. I'm not sure I understand your question, sir.
95. Q. Well, you interviewed Mr. Zheng ostensibly for the purpose of determining whether he is qualified to be a self-employed chef in Canada. Now, you said he has never run a restaurant. That's true. I've asked you do you accept that he has run a kitchen, and you say he claims, he claims, and I'm asking you what was your conclusion? What did you determine from having interviewed him?
A. Just like I said, sir, based on what we discussed, he says that he works in the kitchen and he is in charge of the kitchen staff, and I was satisfied that he works in the kitchen but I was not satisfied that he could be a self-employed chef or business owner.
96. Q. I'd hate to ask the same question over and over again, but I still have not gotten an answer to the question. You agree he works in a kitchen but do you agree that he runs the kitchen?
MS. JAAKKIMAINEN: Could you rephrase the question? It may be that we don't understand what you mean by runs the kitchen.
BY MR. LEAHY:
97. Q. Okay. You say he claims to supervise the staff. Do you agree that he supervises the staff?
A. I agreed that Mr. Zheng works in the kitchen as a cook and he worked with other people there, and he claims that he was in charge of the kitchen staff and that's all there was to it.
[10] Mr. Zheng had put evidence of his experience before the visa officer. She was obliged to review all of that evidence and then to reach a conclusion as to what experience Mr. Zheng had established. The visa officer could, for proper reasons, accept or reject that evidence, but it was inadequate for the visa officer to fail to decide whether Mr. Zheng supervised kitchen staff.
[11] That failure, coupled with the apparent failure to consider properly the evidence of management experience provided by the employer once the visa officer learned that the employer's letter had been improperly rejected, constitute reviewable errors.
[12] It follows that the application for judicial review will be allowed and that it is unnecessary to consider the other issues raised by Mr. Zheng.
[13] Counsel posed no question for certification arising out of the issue which I have found to be determinative, and no question is certified.
[14] Mr. Zheng seeks the costs of this application. I have not been persuaded that the circumstances warrant any departure from the ordinary practice in applications of this sort that the parties bear their own costs.
ORDER
IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the visa officer made on July 24, 2000 is hereby set aside.
2. The matter is remitted for redetermination before a different visa officer.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4541-00
STYLE OF CAUSE: CUNJIE ZHENG
v.
M.C.I.
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 1, 2002
REASONS FOR ORDER AND ORDER OF MADAM JUSTICE DAWSON
DATED: MAY 9, 2002
APPEARANCES:
MR. TIMOTHY LEAHYFOR THE APPLICANT
MS. LEENA JAAKIMAINENFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
MR. TIMOTHY LEAHYFOR THE APPLICANT
Barrister & Solicitor
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada