Date: 20000217
Docket: IMM-3382-98
BETWEEN:
YI ZHAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is an application for judicial review of a visa officer's decision refusing the applicant a visa for permanent residence.
[2] The applicant applied under the self-employed category, as a stock analyst. The visa officer referred to subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172, as amended, in which a "self-employed person" is defined 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."
[3] The visa officer gave a number of reasons for his decision, as well as assessing the applicant under both the independent and the self-employed category. In my view, the visa officer committed an error of law in reaching his decision on the assessment of the applicant as a self-employed immigrant.
[4] The visa officer's decision was based to a significant degree on his finding that a stock analyst was not the type of self-employed activity that could make a significant contribution to the economic life of Canada:
| You indicated that you intend to open a business in Canada which would buy and sell stocks ... You were unable to satisfactorily identify how this would be a significant contribution to the Canadian economy ... |
[5] The applicant's notes of her interview with the visa officer record that the visa officer was of the opinion that a stock-analyst could never satisfy the self-employed category because people both gain and lose money as a result of the advice given by an analyst, and the only kind of contribution that can result is increased tax revenue.
[6] Counsel for the respondent supported the visa officer's decision in this regard with the following argument, which I think fairly reflects the visa officer's reasoning:
| The visa officer's conclusions that the Applicant's intended work as a stock broker would not be a "significant contribution" to the Canadian economy are not biased, but are based on a legal conclusion that this type of work does not constitute a significant contribution to the Canadian economy. |
[7] The applicant submits that assisting Canadians to increase their net worth can be a significant contribution. She argues that it: obviates poverty; stimulates consumer spending; boosts employment; increases tax revenue; allows the government to assist the needy; allows Canadians to enhance retirement prospects through early retirement, thus making more jobs available to others.
[8] The respondent submits that those considerations do not constitute a significant contribution to the economy, since paying taxes is a mandatory contribution to society. Also, as advice from stock brokers can result in a loss, there is not an automatic benefit to Canadians from one stock broker's work.
[9] I am not persuaded that a visa officer's discretion extends to refusing a self-employed applicant a visa merely on the basis of the type of work or business that the applicant intends to pursue. I could find little jurisprudence on the issue, although some decisions, including one of my own, seem to have approved that approach. At the same time, other decisions, such as that by Mr. Justice Lutfy in Pourkazemi v. Canada (M.C.I.), (IMM-4965-97, November 17, 1998) indicate that it is factors other than the type or nature of the occupation that are to be considered.
[10] The Immigration Regulations, 1978, provide for three categories of immigrants: independent, self-employed, and entrepreneur. Applications in all categories are assessed in accordance with Regulation 8(1). That regulation requires that the applicant be assessed in accordance with the factors listed in Column I of Schedule I to the Regulations. Those factors include points given in accordance with the demand that exists for persons qualified in different occupations in Canada (Factor 4), and points given for the existence of a job offer (Factor 5). In the case of a person applying as a self-employed applicant, Factor 5 is not considered relevant and does not enter into the assessment. In the case of a person applying as an entrepreneur, neither Factor 4, nor Factor 5 are considered relevant and do not enter into the assessment. Also, applicants in those categories do not have to obtain any points for Factor 4 in order to obtain a visa (see subsection 11(2) of the Regulations), a requirement that is imposed on those applying in the independent category.
[11] Regulations 8 reads:
8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I;
(b) in the case of an immigrant who intends to be a self-employed person in Canada, on the basis of each of the factors listed in Column I of Schedule I, other than the factor set out in item 5 thereof;
(c) in the case of an entrepreneur, an investor or a provincial nominee, on the basis of each of the factors listed in Column I of Schedule I, other than the factors set out in items 4 and 5 thereof.
8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint :
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
b) dans le cas d'un immigrant qui compte devenir un travailleur autonome au Canada, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, autre que le facteur visé à l'article 5 de cette annexe;
c) dans le cas d'un entrepreneur, d'un investisseur ou d'un candidat d'une province, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, sauf ceux visés aux articles 4 et 5 de cette annexe;
(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in Column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in Column II thereof opposite that factor, but he shall not award for any factor more units of assessment than the maximum number set out in Column III thereof opposite that factor.
(2) Un agent des visas doit donner à l'immigrant qui est apprécié suivant les facteurs énumérés dans la colonne I de l'annexe I le nombre voulu de points d'appréciation pour chaque facteur, en s'en tenant au maximum fixé à la colonne III, conformément aux critères visés dans la colonne II de cette annexe vis-à-vis de ce facteur.
(4) Where a visa officer assesses an immigrant who intends to be a self-employed person in Canada, he shall, in addition to any other units of assessment awarded to that immigrant, award 30 units of assessment to the immigrant if, in the opinion of the visa officer, the immigrant will be able to become successfully established in his occupation or business in Canada.
(4) Lorsqu'un agent des visas apprécie un immigrant qui compte devenir un travailleur autonome au Canada, il doit, outre tout autre point d'appréciation accordé à l'immigrant, lui attribuer 30 points supplémentaires s'il est d'avis que l'immigrant sera en mesure d'exercer sa profession ou d'exploiter son entreprise avec succès au Canada.
[12] I do not think it is open to a visa officer, when assessing a person in the self-employed category, to reject that person because the visa officer considers that the occupation the individual intends to pursue in Canada is of a type that is not of significant benefit to Canada. The significance of the type of occupation to the Canadian economy has already been assessed by whatever points have been awarded (from 0 to 10) under Factor 4.
[13] I note as well, a very interesting editor's comment, found together with the decision in Du v. Canada (Minister of Citizenship & Immigration) (1998), in 44 Imm. L.R. (2d) 102 (F.C.T.D.). The editor argues that undue emphasis is being placed in the jurisprudence on the definition of a "self-employed person" that is found in subsection 2(1) of the Regulations. The editor notes that visa officers are directed, when assessing self-employed applications, to assess the application in accordance with Regulations 8(1)(b) and 8(4). I do not rely on this article but simply note its analysis.
[14] The visa officer in this case gave more than one reason for finding that the applicant did not meet the definition of self-employed set out in subsection 2(1) of the Regulations. Among these were that she did not have enough experience as a stock-analyst, or enough knowledge of the Canadian market. Counsel for the applicant contests the accuracy of some of these additional reasons.
[15] I have asked myself whether, given the visa officer's numerous reasons for his decision, the error identified above is sufficient to require a return of the application to another visa officer for consideration. I have decided that it is a sufficiently significant error that it can be seen as tainting the whole assessment, and that the decision under review should be quashed, and the applicant's application returned for reconsideration. I do not need to consider the other aspects of the decision to which counsel for the applicant referred.
[16] For the reasons given the decision under review will be set aside and the applicant's visa application returned for reconsideration by a different visa officer.
Judge
OTTAWA, ONTARIO
February 17, 2000