Date: 20010817
Docket: IMM-3906-00
Neutral citation:2001 FCT 912
BETWEEN:
CHANGCHUAN YE
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is a judicial review of a decision of a visa officer. The applicant had applied for landing in Canada as a self-employed chef. He was awarded 50 units of assessment. As he was awarded less than 70 units, his application was denied.
[2] The applicant says the visa officer erred in a number of respects.
1. Disallowance of Assets
[3] The applicant claimed to have more than U.S. $70,000.00. The visa officer was not satisfied he was the "sole proprietor" of the funds. His annual earnings did not exceed U.S. $ 30,000.00 and yet there were a substantial number of deposits totalling over U.S. $50,000.00 to the applicant's bank account between October 22nd and December 23rd, 1999. The visa officer was not satisfied with the applicant's explanation that these deposits were the returns of loans he had made.
[4] The applicant says he is not required to show the origin of his assets. However, the visa officer is not obliged to accept evidence that funds in excess of U.S. $70,000.00 are his where an applicant is earning less than U.S. $30,000.00 and has a number of deposits to his bank account over a two month period totalling over U.S. $50,000.00. The visa officer does not make an unreasonable decision in not accepting that the applicant is the beneficial owner of these funds and that they would be available for an investment in a restaurant business in Canada.
[5] The applicant says the visa officer denied him the opportunity to show that he could transfer the funds in his U.S. bank account to Canada. However, even if the funds could be transferred to Canada, that does not prove that the applicant is the beneficial owner of the funds, which was the concern of the visa officer. I would not interfere with the visa officer's disallowance of the applicant's assets.
2. Assessment of English
[6] The visa officer assessed the applicant's ability to speak, read, and write English. She concluded that the applicant's ability was "with difficulty" rather than "well". She awarded him no units on this account. A visa officer has expertise in the assessment of units under Schedule "I" of the Immigration Regulations and her decision is entitled to deference on a reasonableness standard. While another visa officer might have found the applicant's ability to write English "well", I cannot, on the evidence before me, say that the visa officer's assessment in this case was unreasonable. I would not interfere with this finding.
3. Personal Suitability
[7] The applicant was awarded 1 unit of assessment for personal suitability. The respondent concedes the visa officer erred in assessing personal suitability on the basis of the category in which the applicant applied rather than on the basis of the individual himself. However, the respondent says that at most, the applicant might have been awarded another 5 or 6 units and when added to the 50 units he was awarded, he would still be significantly below the normally required 70 units. Even giving the applicant the maximum of 10 units, the applicant's total assessment would still only be 59 units, significantly below the required minimum. This error was not material to the visa officer's conclusion. See Zhang v. Canada (Minister of Citizenship and Immigration) 2001 F.C.J. No. 663 at para. 13 and Yang v. Canada (Minister of Citizenship and Immigration) 1998, 44 Imm. L.R. (2nd) 176 at para. 14.
[8] The applicant relies on Hameed v. The Minister of Citizenship and Immigration, 2001 FCJ No. 10. However, I do not read Hameed to the effect that where an error was not material that the decision must still be set aside. Indeed in Hameed, correction of the error might have resulted in the applicant receiving 69 units. The Court there found that had the applicant been credited with the appropriate number of units, the visa officer might have found an additional unit under the personal suitability category or exercised a positive discretion. That is not the case here where even assuming 10 additional units for personal suitability, the applicant would still only have a maximum of 59 units.
4. Self-Employment Assessment
[9] The visa officer was not satisfied that the applicant had shown that he had 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. The applicant says the visa officer erred in her assessment of his operating estimates, unreasonably required market research before he actually came to Canada and unreasonably emphasized his lack of previous business experience.
[10] However, the visa officer was not satisfied the applicant had the funds to invest in a restaurant business. Further, there were inconsistencies between his written business plan and his oral evidence. In addition, the applicant did not have prior business experience. While prior experience may not be a requirement, it is a relevant consideration when an applicant proposes an economic venture such as a restaurant, see Lobzov v. Canada (Minister of Citizenship and Immigration), 1998, 152 F.T.R. 214 at paras. 9 and 10 and Du v. Canada (Minister of Citizenship and Immigration) 1998, 146 F.T.R. 37 at para. 5.
[11] The applicant alleges that the visa officer had no basis in the evidence for her observation that the Chinese restaurant business in Toronto was saturated and competitive. However, the visa officer questioned the applicant on his business expectation in view of her perception of the market in Toronto and it was open to the applicant, if he was of the view that the visa officer's assessment of the market was incorrect, to say so. He did not challenge her assessment. Having regard to his lack of funds, inconsistencies in his business plan and lack of past business experience, the visa officer's conclusion that the applicant did not have the ability to establish or purchase a business in Canada that would create an employment opportunity for him was not unreasonable.
5. Subsection 2(1) of the Regulations
[12] The visa officer said that she did not award the applicant a 30 unit bonus for self -employed applicants because the applicant did not meet the definition of self-employed person, that is, that he have both 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.
[13] The applicant says that subsection 2(1) of the Regulations is ultra vires as there is nothing in the Act to authorize the requirement in the definition that the business will make a significant contribution to the economy or the cultural or artistic life of Canada. Here the visa officer found that the applicant did not show that he had the ability to operate a business successfully. The applicant does not assert that this portion of the definition as ultra vires. Whether the latter portion of subsection 2(1) is ultra vires is not material to the facts of this case. I would note, however, that a similar provision respecting entrepreneurial applicants in the Immigration Regulations has been found not to be ultra vires, see Chan v. Canada (Minister of Employment and Immigration) 1994, 79 F.T.R. 263, at paras. 18-23.
[14] The applicant seems to argue that in finding that he did not meet the definition of self-employed person, which only refers to the establishment or purchase of a business in Canada, the visa officer erred as she should have assessed him under subsection 8(4) of the Regualations which refers to becoming successfully established in a business or occupation. Specifically, the argument is that he should have been assessed according to his occupation as a self-employed chef and not according to the purchase or establishment of a business. It is not entirely clear how an individual could be a self-employed chef except in the operation of his own restaurant or food services business. However, even if a person could be a self-employed chef without owning a business, that is not the evidence here. In this case, the applicant's proposal was to open a Chinese restaurant. The visa officer therefore did not err in assessing his ability to establish or purchase a business.
6. Duty to Assess With An Open Mind
[15] The applicant says the visa officer did not assess his application with an open mind. I find no basis in the evidence to support this allegation.
7. Conclusion
[16] The application for judicial review will be dismissed.
"Marshall Rothstein"
Judge
Toronto, Ontario
August 17, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3906-00
STYLE OF CAUSE: CHANGCHUAN YE
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, AUGUST 13, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN J.A.
DATED: FRIDAY, AUGUST 17, 2001
APPEARANCES: Mr. Leahy
For the Applicant
Mr. Loncar
For the Respondent
SOLICITORS OF RECORD: Immigration North America Inc.
Barristers & Solicitors
408-5075 Yonge St.
Toronto, Ontario
M2N 6C6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010817
Docket: IMM-3906-00
BETWEEN:
CHANGCHUAN YE
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
Date: 20010817
Docket: IMM-3906-00
Toronto, Ontario, Friday the 17th day of August, 2001
PRESENT: The Honourable Mr. Justice Rothstein
BETWEEN:
CHANGCHUAN YE
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The judicial review is dismissed.
"Marshall Rothstein"
Judge