Federal Court Decisions

Date: 20021125

Docket: IMM-4340-01

Neutral citation: 2002 FCT 1218

Vancouver, British Columbia, Monday, the 25^th day of November, 2002

Present:           THE HONOURABLE MADAM JUSTICE HENEGHAN                                      

BETWEEN:

                                                                    ANTONIO POLO

                                                                                                                                                       Applicant

                                                                              - and -

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Mr. Antonio Polo (the "Applicant") seeks judicial review of the decision of Visa Officer Marlene Edwards (the "Visa Officer"). In her decision, dated August 14, 2001, the Visa Officer refused the Applicant's application for permanent residence in Canada.

FACTS

[2]                 The Applicant is a citizen of Italy and a permanent resident of Venezuela. In July 2000, he applied for permanent residence in Canada under the "self-employed" category at the Immigration Regional Program Centre in Buffalo, New York. His application also included his wife and three children as accompanying dependants. The Applicant lives with his family in Venezuela.

[3]                 The Applicant requested assessment as a "self-employed graphic designer/printer", pursuant to the National Occupational Classification ("NOC") as NOC 5241.0. Further to a review of his application, the Visa Officer "paper-screened" the Applicant in November 2000 and an interview was scheduled for August 8, 2001. The Applicant attended this interview at the Canadian Consulate in New York with his wife.

[4]                 The Visa Officer questioned the Applicant about his education, training and experience as a graphic designer, and the requirements under NOC 5241. Although the Applicant had twenty years of experience in the field of graphic design and operated his own graphic design business for the preceding ten years, the Visa Officer expressed concern about his qualifications and experience. She also expressed concern that the lack of formal education in graphic design might limit his competitiveness in the Canadian market.

[5]                 At the interview the Applicant provided business plan scenarios, information on design services and documentation demonstrating research conducted on wages, salaries and the printing industry in Canada. The Applicant had visited Canada and he had made inquiries with Canadian graphic design businesses.

[6]                 As well the Applicant provided the Visa Officer with information concerning the graphic design business he operated in Caracas, Venezuela. He provided information about his financial and other assets, including jewellery and an art collection. He claimed the art collection was worth approximately $33,000.00, that an appraisal was being prepared and he would submit that appraisal to the Visa Officer upon receipt. However, the negative decision on his application was made before receipt of the appraisal.

[7]                 In her refusal letter, dated August 14, 2001, the Visa Officer concluded that the Applicant would not be able to successfully establish a business in Canada in his intended occupation. Accordingly, she did not award him the 30 units for a self-employed applicant. The refusal letter also states that the Visa Officer assessed the Applicant in the "entrepreneur" category and concluded that he did not meet that definition.

[8]                 Finally, the Visa Officer assessed the Applicant as an "assisted relative" but he did not obtain sufficient units of assessment to qualify under that category.

APPLICANT'S SUBMISSIONS

[9]                 The Applicant argues that the Visa Officer erred in law in finding that he did not meet the definition of "self-employed person" pursuant to the Immigration Regulations, 1978, SOR/78-172, as amended (the "Regulations"). He also submits that she misinterpreted the requirements for his capital investment relying on the Immigration Policy Manual, OP-6, section 5.1. That provision states that there is no minimum investment for a self-employed person. The Applicant submits that he had the initial capital investment to establish a graphic design business in Canada. He suggests that the Visa Officer overlooked his history as an established and successful graphic designer in Venezuela.

RESPONDENT'S SUBMISSIONS

[10]            The Respondent argues that the Applicant is essentially challenging the manner in which the Visa Officer assessed his application and the evidence tendered in support. The Respondent says that the Visa Officer considered the proper factors and that she committed no reviewable error in reaching her decision.

ANALYSIS

[11]            This matter concerns the refusal of the Applicant in his application to gain admission into Canada as a permanent resident in the category of "self-employed person". That is a defined term in section 2(1) of the Regulations, as follows:

"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;

«travailleur autonome» s'entend d'un immigrant qui a l'intention et qui est en mesure d'établir ou d'acheter une entreprise au Canada, de façon à créer un emploi pour lui-même et à contribuer de manière significative à la vie économique, culturelle ou artistique du Canada.

[12]            Section 8(4) of the Regulations is related to the definition provided in section 2(1). Section 8(4) provides as follows:

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.

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.

[13]            In my opinion, the Visa Officer properly considered whether the Applicant met the definition of "self-employed person". According to both the notes maintained in the Tribunal Record and the affidavit filed by the Visa Officer in this proceeding, she considered the elements identified in the definition and weighed the evidence submitted by the Applicant, together with the responses and information provided by the Applicant at his interview.

[14]            The decision now under review was made by the Visa Officer in the exercise of her discretion conferred by the Immigration Act, R.S.C. 1985, c. I-2, as amended. The applicable standard of review is one of deference; see Maple Lodge Farms Limited v. Canada, [1982] 2 S.C.R. 2 where the Court stated at pages 7 - 8:

It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a 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.

In the absence of evidence that the Visa Officer considered irrelevant or extraneous matters or failed to consider relevant evidence, there is no basis for judicial intervention.

[15]            The application for judicial review is dismissed. No serious question of general importance arises from this application.

                                                  ORDER

The application for judicial review is dismissed.

(Sgd.) "Elizabeth Heneghan"            

J.F.C.C.

VANCOUVER, B.C.

November 25, 2002

                              FEDERAL COURT OF CANADA

    Names of Counsel and Solicitors of Record

DOCKET:                                 IMM-4340-01

STYLE OF CAUSE: ANTONIO POLO

Applicant

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

PLACE OF HEARING:         TORONTO, ONTARIO

DATE OF HEARING:           WEDNESDAY, NOVEMBER 20, 2002

REASONS FOR ORDER AND ORDER BY:                      HENEGHAN, J.

DATED:                                                                                       NOVEMBER 25, 2002

APPEARANCES BY:

Mr. Irvin Sherman, Q.C.                                                   For the Applicant

Ms. Amina Riaz                                                                 For the Respondent

SOLICITORS OF RECORD:

Mr. Irvin Sherman

Martinello & Associates

Suite 208, 255 Duncan Mill Road

Don Mills, ON    M3B 3H9                                               For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada                                For the Respondent