Federal Court Decisions

     IMM-1028-96

BETWEEN:

     WAI HONG CHUNG,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

     (Delivered orally from the Bench on October 22, 1996,

     in Toronto, Ontario, as edited)

LUTFY J.:

     The decision of the visa officer is expressed in her letter of refusal of February 16, 1996:

Apart from a three-month course in hair colouring, and one month course in hairdressing, you had no formal training as a hairdresser, and would not likely be able to qualify as a hairdresser in Canada. Your experience from 1990 to 1994 included work as a junior stylist and a hairdressing assistant, and not as a hairdresser. In 1994 you joined your father's hairdressing business and have worked there since as a partner in the business. The experience you have obtained during the period since joining your father in business is not, in my opinion, sufficient to demonstrate an ability to successfully establish a business in Canada with the $60,000.00 apparent net worth indicated in your application.

You indicated at interview that the business you would plan to establish would involve renting a chair in the existing hair salon for $200.00 a month. Without either English or a Hairdressing Licence it would be difficult for you to succeed in operating such a business. Moreover, the small scale of such a business could not be considered likely to generate significant benefit for the Canadian economy.

     The visa officer's determination in this case is restated in paragraph 21 of her affidavit which forms part of the respondent's application record:

I determined that the applicant did not have 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 in Canada for the following reasons:

(a)      he did not have the necessary business acumen;

(b)      although he had several years of experience as a colourist and a hairdressing apprentice, there was some doubt as to his experience as self-employed hairdresser;

(c)      he could not service an extended clientele outside of the Cantonese speaking community as he claims he intends to do due to his lack of English language skills; and

(d)      he could not even service the Cantonese speaking community as it was questionable when and if he would obtain the necessary Ontario Licence due to his lack of English language skills.

     As is acknowledged by the visa officer herself, with the use of the words "questionable when and if" in paragraph 21(d) of her affidavit, the evidence concerning the necessity of a licence to take up the position within the Swan Hair Boutique is equivocal. The best evidence upon which the visa officer relied, appears to be the letter of January 2, 1996, from the applicant's solicitor, paragraph 4 of which states:

We have contacted the regulatory agency in this regard and have been advised that three years of experience are required to write the exam. Mr. Chung has well over this amount of experience.

     This letter of the applicant's solicitor was in response to the visa officer's written questions which are found at pages 26 and 28 of the visa officer's record. These are the notes that the visa officer delivered to the applicant after the interview. Paragraph 4 of her notes states: "Proof from Ontario Government you are qualified (to work as a hairdresser) for a licence".

     The burden of proof is on the applicant who was given the opportunity to address this issue. The visa officer concluded, not unreasonably in my view, on the basis of the record before her, that the licence was required. If she was in error in this regard, as a question of fact, then I am satisfied that that error is not one which in any meaningful way affects the visa officer's conclusion that the applicant would not make a significant contribution to the economy in Canada.

     I have listened carefully to and considered the six points characterized as errors by the applicant's solicitor during today's hearing concerning the decision of the visa officer.

     As I understood her submissions, counsel for the applicant pointed to statements made by the visa officer in her notes which are part of the record, pages 70 through 72, under tab 8 of the applicant's record. In particular, she pointed to page 72 where the visa officer noted:

Subj. was set up in a business by his father, a business in which is father was involve for many years. It is my opinion that this was done as an insurance measure for son to join family by applying as a self-employed applicant, as he would not be able to meet the indep. sel. criteria on his own. (original text with no editing.)

Under the same rubric, counsel for the applicant also referred to paragraph 7 of the respondent's affidavit, where she makes certain assertions relating to the applicant's statement concerning his work, the business side of his experience in the hairstylist salon in Hong Kong. On both points I am satisfied that there was no error made by the visa officer. These were not issues blatantly irrelevant in her consideration of the application. They were attempts by her to test some of the assertions that she was receiving from the applicant, and in my judgment they were legitimate considerations in the overall assessment of whether the applicant was a self-employed person within the meaning of the definition, and within the meaning of the various criteria under the appropriate schedule of the Regulations.

     Similarly, the second point raised by the applicant's counsel had to do with zero points being assessed for experience. In my judgment, and I accept the statements of counsel for the respondent, that even if somewhere between 2 to 6 points had been assessed for experience, 6 points being the maximum on the basis of the applicant counsel's own acknowledgement, then the applicant would still have fallen well short of the 70 points required since, in the visa officer's overall assessment, the applicant was not a person coming within subsection 8(4) of the Regulations.

     The applicant's counsel also attempted to characterize as an error paragraph 12 of the affidavit of the visa officer concerning the applicant's ability or lack thereof to communicate in English. The fourth item that she attempted to characterize as an error was the use of the word "franchise" (at page 71 of the applicant's record, tab 8) by the visa officer in characterizing what the applicant would be doing at the Swan Hair Boutique. As another error applicant's counsel also raised the 3 out of 10 point maximum, assessed by the visa officer for Personal Suitability, and pointed to paragraph 17 of the visa officer's affidavit in this regard.

     With respect to these last three points, which counsel for the applicant has characterized as errors, I am satisfied that the visa officer made no error in this regard, and in any event, none of the kind that would warrant the intervention of this Court.

     With respect to the sixth point raised by counsel for the applicant concerning the issue of the hairdressing licence, I have already addressed that issue earlier in the reasons. And with specific regard to that point I am satisfied that the applicant was given full opportunity to address the issue.

    

     In summary, the applicant did not satisfy this Court that the visa officer was unfair in the carrying out of her duty, nor did the visa officer fail to pay proper consideration to the principles of natural justice and procedural fairness. The visa officer did provide, with her handwritten questions delivered to the applicant, the opportunity to respond to what she thought were contentious issues in her assessment of this application.

    

     Counsel for the applicant has, and in my view properly, referred me to the decision of Maple Lodge Farms Ltd. v. Government of Canada et al., [1982] 2 S.C.R. 2 at p. 10:

It is, as well, a clearly-established rule that the courts should not interfere with the exercise of discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

     I note that that extract was cited with approval in the recent decision of the Court of Appeal, in To v. Canada (The Minister of Employment and Immigration) under Court File No. A-172-93, a decision of May 22, 1996.

     For these reasons, this application for judicial review is dismissed.

                         Allan Lutfy

                         Judge

Ottawa, Ontario

January 31, 1997