Date: 19980320
Docket: IMM-1079-97
BETWEEN:
KIM MUI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is an application for an order setting aside a visa officer's decision that refused the applicant landing in Canada, and in particular her decision that he did not fit within the definition of "self-employed" immigrant.
[2] It is clear that a certain amount of acrimony has built up between counsel for the applicant and the visa officer. I will deal at the end of the reasons with the submissions that were made concerning two affidavits, the admissibility of which is challenged.
[3] The applicant has been living and working illegally in Canada as a hairdresser for fifteen years. When he was initially evaluated by the visa officer, she gave him 0 points for "specific vocational preparation" and 4 points for "personal suitability". On reassessment, at counsel's request, she awarded 11 points for "specific vocational preparation". She did not raise the number of points awarded for "personal suitability". That category usually involves a judgment as to whether a prospective immigrant possesses qualities (such as resourcefulness) that make it likely that he or she will be able to become established in Canada. It does seem perverse that a person who has been established here for 15 years was not given the full 10 points.
[4] The visa officer was influenced by the fact that the applicant had been an illegal immigrant for fifteen years. She expressed the view that he might be a member of an inadmissible class as described in paragraph 19(2)(d) of the Immigration Act. This is an irrelevant consideration at this stage of the immigration process. (See King-Sing So v. The Minister of Employment and Immigration (1995), 93 F.T.R. 154 at 155.)
[5] In any event, even with the additional points for "specific vocational training" and if he was accorded the full ten points for personal suitability, the applicant would not have enough points (70) to qualify for landing unless he is accorded the 30 points given to someone who falls into the self-employed immigrant category. The relevant regulations read:
| s. 2(1) |
| . . . . |
| "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; |
| s. 8(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. |
[6] Counsel for the applicant's main argument is that the applicant has been working in Canada for 15 years as a hairstylist, how can he not qualify as a member of the self-employed immigrant category?
[7] The visa officer's decision was based on her conclusion that the applicant was not able to purchase or establish a business in Canada, and that he did not expect to be able to do so for several years. She stated that there was no evidence that he had any assets and he had told her he earned a "minimal wage". She noted that he had expressed an intention, once he was landed, to take hairstylist courses, earn a certificate and thereby obtain a larger income; he had said that perhaps in four or five years he might be able to establish a hairdressing salon.
[8] The applicant's counsel notes that there was evidence before the visa officer that the applicant's present terms of employment were ones under which he rented space (a chair) in a hairdressing salon and retained as compensation a percentage of the monies he received from the clients. The rest of what he earned was turned over to the owner of the salon.
[9] Counsel states that there is also evidence that the applicant had assets, which he contends the visa officer should have asked about rather than just assuming the applicant had none. The applicant's counsel's argument is that, in essence, a hairstylist does not need a large capital outlay to establish a business. Also, I note that in Margarosyan v. Canada (M.C.I.) (1996), 37 Imm. L.R. (2d) 53 (F.C.T.D.), Mr. Justice Gibson held that an applicant was entitled to admission under the self-employed category even though her intention was to teach dance at existing schools before opening her own.
[10] I have reviewed the material on the file carefully. I have come to the conclusion that the decision should be set aside and the applicant's application referred back for reconsideration by another officer. It is clear that in making the first assessment the visa officer was strongly influenced by the fact that the applicant had been an illegal immigrant in Canada for so many years.
[11] She did accuse the applicant of having gone to Hong Kong to obtain a U.S. visitor's visa so that U.S. officials could not know of his illegal status in Canada. She denied having done so in her affidavit but the record demonstrates otherwise. In fact, when the applicant's counsel wrote to the Hong Kong U.S. Consulate seeking a visitor's visa for his client, he disclosed the applicant's illegal status in Canada and sought advice as to whether the application should be made to the U.S. Consulate in Toronto or to the U.S. Consulate in Hong Kong.
[12] There are a number of highly discretionary aspects to the points assessment process, especially when assessing a person as a potential "self-employed person". I am persuaded that there was a negativity on the part of the visa officer towards this applicant, arising from a number of causes, one of which was likely to be counsel's intemperate way of sometimes putting forward his views. In any event, in order to ensure fairness, the applicant's application should be referred back for reassessment by another officer.
[13] With respect to the disputed affidavits, I have not considered that of Imelda On, dated May 19, 1997, to be part of the record. It was filed as part of the application record, outside the prescribed time limits. Also, it contains very prejudicial and inflammatory statements. These are not of assistance to a client. With respect to the affidavit of Priscilla Lee, portions of that affidavit are irrelevant, some of it would have been better coming directly from Mr. Mui, as within his personal knowledge, and there is a great deal of hearsay in the affidavit. I am not, however, treating it as having been struck from the record. Nor am I going to go through it and identify those paragraphs that should be struck and those that can remain. I note only that, to the extent I have relied upon it (which is hardly at all), I have kept in mind and applied the relevant rules of evidence. Most of the evidence that I found relevant for the purposes of this decision is found in the record itself, and in the affidavit and cross-examination of the visa officer, not in Ms. Lee's affidavit.
[14] I am not prepared to grant costs. Counsel asked for directions similar to those given by Mr. Justice Rouleau in King-Sing So (supra). I ask the relevant officials to take whatever measures they can to facilitate a reconsideration of the applicant's application but I am not prepared to put that request in the form of an order.
Judge
OTTAWA, ONTARIO
March 20, 1998