Date: 20000622
Docket: IMM-5908-99
BETWEEN:
BINGYAO LIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] This is an application for judicial review of a decision of Sara Trillo ( the "visa officer"), dated November 2, 1999, wherein she refused the application of Bingyao Lin (the "Applicant") for permanent residence in Canada.
[2] The Applicant applied as a self-employed person. His intended occupation was that of a self-employed chef.
[3] By letter dated November 2, 1999, the visa officer denied the application for permanent residence. The visa officer found that the Applicant did not meet the qualifications of a "self-employed person", since in her opinion, the Applicant did not persuade her that he would be able to successfully establish himself in Canada in his proposed business venture. The visa officer based her conclusion on her assessment of the Applicant"s training and experience, and of his financial resources.
[4] The Applicant raises a number of arguments in the present application for judicial review.
[5] First, he alleges that the visa officer was functus officio at the time she made her decision refusing the Applicant"s application for permanent residence. The Applicant grounds this argument in the fact that the Applicant signed a statutory declaration concerning the funds the Applicant would bring to Canada. The visa officer signed this document as a witness.
[6] Although the language used in the statutory declaration is unclear, there is no merit in the argument that this document constitutes a decision. The visa officer only signed this document as a witness.
[7] Likewise, there is no merit in the argument contained in the Applicant"s written submissions to the effect that this statutory declaration constituted an agreement between the Applicant and the Minister of Citizenship and Immigration (the "Respondent") concerning the Applicant"s admission into Canada. A statutory declaration is a statement made concerning information personal to the declarant.
[8] Second, the Applicant argued that the visa officer had an obligation to assess the Applicant under subsection 8(1) of the Immigration Regulations, 1978. Specifically, the Applicant argued that this subsection imposes a duty on the visa officer to determine whether the Applicant will be able to successfully establish himself in Canada.
[9] I am of the opinion that the question of whether an applicant will be able to successfully establish him or herself is answered when the visa officer conducts an assessment pursuant to the factors found in Column I of Schedule I in the Immigration Regulations.
[10] I am also of the opinion that the visa officer had no obligation to assess the Applicant as a skilled worker, a self-employed person and an entrepreneur. In the present matter, I am satisfied that the visa officer did what was required of her. After determining that the Applicant did not meet the definition of a self-employed person, she assessed the Applicant as a chef. The visa officer determined: "I do not see by his explanation that he was trained to be a chef nor even a cook"1.
[11] Third, the Applicant argues that the visa officer erred in commenting on the Applicant"s lack of ability and experience with financial transactions. Having regard to the totality of the evidence and her conclusions, I am of the opinion that her decision to refuse the Applicant is reasonable.
[12] Finally, the Applicant raises the argument that the visa officer erred in not considering or exercising positive discretion which is conferred on her by virtue of subsection 11(3) of the Immigration Regulations.
[13] I do not agree. The Applicant did not request that he be considered for positive discretion nor are there any facts contained in the record which should have triggered the visa officer"s consideration of subsection 11(3) discretion.
[14] The application for judicial review is dismissed.
[15] I have declined to certify a question of general importance because the facts of this case do not present one.
ORDER
[16] The application for judicial review be dismissed.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
June 22, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-5908-99 |
| STYLE OF CAUSE: BINGYAO LIN |
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| DATE OF HEARING: TUESDAY, JUNE 20, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: HENEGHAN J. |
DATED: THURSDAY, JUNE 22, 2000
| APPEARANCES: Mr. Timothy E. Leahy |
| For the Applicant |
Mr. Martin E. Anderson
| For the Respondent |
| SOLICITORS OF RECORD: Timothy E. Leahy |
Barrister & Solicitor
5075 Yonge St., Suite 408
Toronto, Ontario
M2N 6C6
| For the Applicant |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20000622
Docket: IMM-5908-99
Between:
| BINGYAO LIN |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
| AND ORDER |
__________________
1CAIPS notes, Certified Tribunal Record, page 79, at lines 22 and 23.