Date: 20030327
Docket: IMM-1989-01
Neutral citation: 2003 FCT 363
Ottawa, Ontario, this 27th day of March, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
CHANGTAI ZOU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of a visa officer at the Canadian Consulate General in New York, dated April 9, 2001, wherein the visa officer refused the applicant's application for permanent residence in Canada.
[2] The applicant seeks:
1. An order in the nature of a writ of certiorari setting aside the immigration officer's decision;
2. An order in the nature of a writ of mandamus; or in the alternative, a direction, requiring the respondent to approve the applicant's immigrant-visa without interview and to bear any additional fees;
3. An order in the nature of a writ of mandamus; or in the alternative, a direction, requiring the respondent to refund the money the agent demanded the applicant pay as a condition for a selection decision;
4. An order in the nature of a declaration finding that assessing officers must give "full faith and credit" to those, such as the applicant who (a) have secured employment in their "intended occupation" outside their patriae, (b) whose earnings at least equal the sponsorship income-guideline set for a family of their size, and (c) who have accumulated the requisite amount of assets for a family of their size (i.e. the respondent is to recognize that they "are likely (also) to become successfully established in Canada";
5. An order in the nature of a writ of mandamus; or in the alternative, a direction, requiring the respondent to finalize this case within four months;
6. Any favourable orders the Court considers appropriate; and
7. Legal fees in the amount of $6,600, plus examination expenses.
Background
[3] The applicant is a citizen of China residing in the United States. On July 13, 1999, the applicant submitted an application for permanent residence in Canada in the self-employed category. He stated his current occupation was "Head Chef" and his intended occupation was "Self-Employed Chef". On his application, the applicant indicated that he had been employed in China and the United States as a cook, group leader, top chef, head cook, or head chef from 1981 to the present. The applicant intended to open a Chinese restaurant in Toronto, Ontario.
[4] On April 7, 2000, the visa officer interviewed the applicant at the Canadian Consulate General in New York. An interpreter was present at the interview.
[5] On March 15, 2001, the applicant submitted the correct processing fee for his application.
[6] By letter dated, April 9, 2001, the visa officer informed the applicant that her application for permanent residence in Canada had been refused. The letter stated:
. . .You were assessed in your intended occupation as Self Employed Chef (NOC 6241.3). A breakdown of your assessment follows:
Age 10
Occupational Factor 10
S.V.P. 07
Experience 04
Demographic Factor 08
Education 13
English 00
French 00
Personal Suitability 03
Self-Employed Units 00
TOTAL 55
I have not awarded you the 30 unit bonus because you were unable to demonstrate that you have the ability to successfully establish as a self employed chef, that this business in Canada would provide an employment opportunity for you or that this business in Canada would create a significant contribution to the Canadian economy or Canadian cultural life. While you have several years experience as a cook, you have no evidence you will be able to establish yourself on a professional basis in Canada. The business plan you provided as well as the statements you made at interview revealed you will be operating at a loss for the first year of operation. You were unable to satisfy me you have a plan in place to make your proposed business successful in Canada. You have not established any relationships with business contacts in Canada, such as suppliers, wholesalers, etc. and you could not respond to my concerns regarding your lack of preparation. You appear to have no clear plans on how you will establish yourself in a market that may be already fulfilling the needs of Canadian customers.
You present a bank deposit from China stating you have $145, 000 usd, yet you were unable to provide any evidence of the source of these funds as was required. You were also not able to provide evidence to substantiate your claim that you are the sole proprietor of these funds.
On your application form, you stated you could read, write and speak English well. However at interview, you stated your ability is very limited; you used the services of an interpreter during the interview and you did not take a writing test. Therefore, 0 units of assessment were awarded for your English ability.
I have also assessed your application under the Independent Category and I must advise you did not meet the selection criteria for immigration to Canada .
I have asked myself whether the units awarded are an accurate gauge of your ability to become successfully established in Canada and I am satisfied that they are.
. . .
[7] This is the judicial review of the decision of the visa officer.
Applicant's Submissions
[8] The applicant submits the visa officer fettered her discretion. The applicant submits the visa officer arbitrarily rejected proof of the applicant's assets, and refused to inquire as to whether the money was still on deposit when she issued the refusal letter one year later. It is submitted the applicant had proven ownership of the funds and that the visa officer improperly required him to prove the source of the funds. It is requested that the Court declare that officers are only to ascertain ownership, not origin, of assets of non-investor category applicants. The applicant submits the visa officer denied his application because he had no U.S. income tax documentation and had been paid in cash. The applicant submits the visa officer imposed a restrictive requirement on the applicant that at the time of the interview he have a plan in place to open a Canadian business.
[9] The applicant submits the visa officer took into account irrelevant considerations through her restrictive approach to the applicant and requiring him to have made detailed preparations on opening a business in Canada.
[10] The applicant submits the visa officer made erroneous findings of fact that included finding that his certificate-of-deposit that was issued a month before the interview was questionable, indicating in the CAIPS notes that his business plans revealed he would be losing money for a year, finding the applicant lacked initiative because he had made no effort to legalize his immigration status in the United States, and finding there are 1,600 Chinese restaurants in Toronto.
[11] The applicant submits the visa officer knew she was going to refuse his application, yet demanded payment of $1,600 before she would release her decision. It is submitted the Court should order reimbursement of these fees.
[12] The applicant submits the visa officer was biased as she was inclined to make negative findings without evidence, refused to confirm whether certain assets had remained on deposit, placed excessive emphasis on income-tax records, revenged against those people, such as the applicant, without durable immigration status in the United States and who cannot speak English, and extracted fees from a person she intended to reject. It is submitted that the visa officer had total disregard for the sacrifice and risk the applicant had taken in going to the United States. It is submitted that the visa officer's bias towards the applicant and similarly situated applicants was demonstrated when she was confronted with her record of consistently refusing similarly situated applicants, before preparing her affidavit, and she did not deny it or attempt to justify her conduct.
[13] It is submitted that if the applicant is entitled to equal treatment under the law, then the payment of legal fees would be appropriate. The applicant submits that because the Minister has restricted business-class applicants to "centres of excellence", officers should be held to a higher standard and when they fail to meet this standard they should reimburse applicants for having failed to manifest the minimum level of expertise that was publicly declared would be provided. It is submitted that if there is no risk of liability for improper decision-making, there is no reason to provide properly trained staff or rectify errors. It is submitted that if the Crown is to be held accountable, prevailing litigants should be awarded their litigation costs and sheltered from incurring additional interview costs.
Respondent's Submissions
[14] The respondent submits the application for judicial review should be dismissed. It is submitted that the visa officer assessed the applicant's application for permanent residence in a fair manner and in accordance with the law.
[15] The respondent further submits the applicant has not raised a ground for judicial intervention. It is submitted the allegations that the visa officer fettered her discretion, imported irrelevant considerations, made erroneous findings of fact, was biased, and failed to conduct a bona fide interview are unfounded. The respondent submits many of the applicant's allegations are immaterial to the essential grounds of refusal of the application.
[16] The respondent submits there is nothing in the record to suggest that the visa officer fettered her discretion. It is submitted that the comment about the payment of taxes arose in the context of assessment of personal suitability and that even if the applicant had received the maximum number of points for this factor, he still would have been below the overall minimum requirement.
[17] The respondent submits that the assertion regarding the requirement of opening a business upon landing is immaterial to the essential grounds of refusal and that there is nothing in the refusal letter, CAIPS notes or visa officer's affidavit indicating that finding the applicant lacked the ability to successfully establish himself as a "self-employed" chef was based on when the restaurant would be set up. The respondent submits that the jurisprudence cited by the applicant does not support the proposition that the visa officer does not have jurisdiction to inquire about the actual ownership of funds and assets that could be used to establish a business under the self-employed category.
[18] The respondent disputes the allegations regarding erroneous findings of fact and submits the applicant has not raised a ground for judicial intervention. The respondent submits the applicant's supporting affidavit is improperly constituted and should be afforded no weight as it is not confined to facts within the personal knowledge of the deponent.
[19] The respondent submits there is no basis to support the assertions that the visa officer improperly extracted money from the applicant. The respondent submits the payment of processing fees is not a matter within the discretion of the visa officer, but is prescribed by regulation.
[20] The respondent submits there is no foundation for the applicant's allegation of bias.
[21] In regard to costs, the respondent submits the allegations against the integrity of the visa officer are groundless and if costs are awarded, they should be awarded to the respondent, in light of improper, vexatious or unnecessary allegations made against the respondent's officials in this case.
[22] Issues
1. Did the visa officer fetter her discretion by importing her own criteria?
2. Is the visa officer's decision predicated in part on irrelevant considerations?
3. Did the visa officer make erroneous findings of fact?
4. Did the visa officer fail to conduct a bona fide interview?
5. Is the visa officer bias against applicants such as Changtai Zou?
6. Did the visa officer improperly extract money from the applicant?
7. Should the respondent pay significant legal fees to the applicant?
Relevant Statutory Provisions and Regulations
[23] The relevant statutory provisions of the Immigration Act, R.S.C. 1985, c. I-2, state as follows:
|
6. (1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependants, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations.
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
6. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, tout immigrant, notamment tout réfugié au sens de la Convention, ainsi que toutes les personnes à sa charge peuvent obtenir le droit d'établissement si l'agent d'immigration est convaincu que l'immigrant satisfait aux normes réglementaires de sélection visant à déterminer s'il pourra ou non réussir son installation au Canada, au sens des règlements, et si oui, dans quelle mesure.
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. |
[24] The relevant statutory provisions of the Immigration Regulations, 1978, S.O.R./78-172, state as follows:
|
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;
8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in Column I of Schedule I;
(b) in the case of an immigrant who intends to be a self-employed person in Canada, on the basis of each of the factors listed in Column I of Schedule I, other than the factor set out in item 5 thereof;
. . . |
2.(1) « 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.
8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint:
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
b) dans le cas d'un immigrant qui compte devenir un travailleur autonome au Canada, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, autre que le facteur visé à l'article 5 de cette annexe;
. . .
|
|
(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in Column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in Column II thereof opposite that factor, but he shall not award for any factor more units of assessment than the maximum number set out in Column III thereof opposite that factor.
. . .
(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.
9. (1) Subject to subsection (1.01) and section 11, where an immigrant, other than a member of the family class, an assisted relative, or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if
(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;
(b) where the immigrant and the immigrant's accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8,
. . .
|
(2) Un agent des visas doit donner à l'immigrant qui est apprécié suivant les facteurs énumérés dans la colonne I de l'annexe I le nombre voulu de points d'appréciation pour chaque facteur, en s'en tenant au maximum fixé à la colonne III, conformément aux critères visés dans la colonne II de cette annexe vis-à-vis de ce facteur.
. . .
(4) 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.
9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si:
a) l'immigrant et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement; et
b) lorsqu'ils entendent résider au Canada ailleurs qu'au Québec, suivant son appréciation de l'immigrant ou du conjoint de celui-ci selon l'article 8:
. . .
|
|
(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment,
11.(2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless
(a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of Column I of Schedule I;
(b) the immigrant has arranged employment in Canada; or
(c) the immigrant is prepared to engage in employment in a designated occupation.
11.(3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,
if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer. |
(i) dans le cas d'un immigrant, autre qu'un entrepreneur, un investisseur, ou un candidat d'une province, il obtient au moins 70 points d'appréciation,
11.(2) Sous réserve des paragraphes (3) et (4), l'agent des visas ne délivre un visa en vertu des articles 9 ou 10 à un immigrant autre qu'un entrepreneur, un investisseur, un candidat d'une province ou un travailleur autonome, que si l'immigrant:
a) a obtenu au moins un point d'appréciation pour le facteur visé à l'article 4 de la colonne I de l'annexe I;
b) a un emploi réservé au Canada; ou
c) est disposé à exercer une profession désignée.
11.(3) L'agent des visas peut
a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.
|
[25] Section 2 of the Immigration Act Fees Regulations, S.O.R./97-22, states as follows:
|
2. In addition to any other requirement of the Act or the regulations made under the Act, an application is not a duly completed application until the prescribed fees in relation to it are paid. |
2. Outre toute autre exigence de la Loi ou de ses règlements, une demande n'est pas dûment complétée tant que le prix applicable n'est pas acquitté. |
Analysis and Decison
[26] Issue 1
Did the visa officer fetter her discretion by importing her own criteria?
The visa officer made the following remarks concerning the source of the applicant's funds (page 2 of the refusal letter (tribunal record at page 4)):
You present a bank deposit from China stating you have $145,000 usd, yet you were unable to provide any evidence of the source of these funds as was required. You were also not able to provide evidence to substantiate your claim that you are the sole proprietor of these funds.
The applicant applied for permanent residence in Canada in the self-employed category as a self-employed chef (NOC 6241.3). When the visa officer interviewed the applicant, she was very concerned about the applicant's funds. As verified by the visa officer's refusal letter, she had two concerns regarding the funds. The first concern was that the applicant could not provide any evidence of the source of the funds. The second concern was that the applicant could not provide evidence to substantiate his claim that he was the sole proprietor of the funds. I have reviewed the record and I cannot find any evidence to raise a suspicion that the applicant did not own the funds. He has stated that he owns the funds. I note that the visa officer is entitled to determine whether or not the funds are the applicant's to use to establish his business in Canada. However, I am of the view that an applicant need not establish the source of his funds as long as he can establish that the funds are his to use to establish his business. From my review of the file, I am of the view that the visa officer, in this case, imposed two separate requirements on the applicant: (i) ownership of the funds, and (ii) source of the funds. Under the self-employed category, the visa officer cannot require that the applicant establish the source of his funds as a separate requirement, apart from the ownership of the funds. I am of the view that the visa officer made an unreasonable decision in imposing this requirement on the applicant. Because the funds are necessary to establish the proposed business, the issue of funds is important to the final outcome of the application, and I am of the view that in order to be assessed fairly, the applicant should have his application reheard. The application is therefore allowed and the matter is referred to a different visa officer for redetermination. I will not set a time by which the new hearing will take place.
[27] Because of my conclusion on Issue 1, I will not deal with the other issues raised by the applicant except for the issues of costs and the certification of questions.
[28] The applicant has requested that the respondent pay significant legal fees to Mr. Zou. I am not prepared to make this order.
[29] The applicant has proposed that the following questions be certified:
1. Is s. 350 of the Immigration Regulations, 2002, ultra vires the Immigration and Refugee Protection Act in that the statutory provision the respondent asserts provides its raison d'étre, i.e., s. 190; is not àpropos because (a) s.190 applies only to (i) matters "under the former [Immigration] Act", not the Federal Court Act, which were (ii) pending before Immigration, not the Federal Court, on 28 June 2002 and, in any event, (b) the matter giving rise to this application before the Federal Court was not "pending" on that date because the visa-officer had finalized the matter when she issued her refusal letter on 9 April 2001?
2. If the respondent should assert that R.350 rests on any other provision of the Immigration and Refugee Protection Act, (a) does that provision breach a Charter right; e.g., s. 7, s. 12, or s.15; or (b) constitute an unlawful delegation of parliamentary authority to anonymous bureaucrats, inconsistent with "peace, order and good government"?
[30] The respondent objects to either question being certified. I have considered the submissions of the parties and I am prepared to certify the following question:
1. Is s. 350 of the Immigration Regulations, 2002, ultra vires the Immigration and Refugee Protection Act in that the statutory provision the respondent asserts provides its raison d'étre, i.e., s. 190; is not àpropos because (a) s.190 applies only to (i) matters "under the former [Immigration] Act", not the Federal Court Act, which were (ii) pending before Immigration, not the Federal Court, on 28 June 2002 and, in any event, (b) the matter giving rise to this application before the Federal Court was not "pending" on that date because the visa-officer had finalized the matter when she issued her refusal letter on 9 April 2001?
I am not prepared to certify the second proposed question.
ORDER
[31] IT IS ORDERED that:
1. The application for judicial review is allowed and the matter is referred to a different visa officer for redetermination.
2. The following serious question of general importance is certified:
1. Is s. 350 of the Immigration Regulations, 2002, ultra vires the Immigration and Refugee Protection Act in that the statutory provision the respondent asserts provides its raison d'étre, i.e., s. 190; is not àpropos because (a) s.190 applies only to (i) matters "under the former [Immigration] Act", not the Federal Court Act, which were (ii) pending before Immigration, not the Federal Court, on 28 June 2002 and, in any event, (b) the matter giving rise to this application before the Federal Court was not "pending" on that date because the visa-officer had finalized the matter when she issued her refusal letter on 9 April 2001?
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
March 27, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1989-01
STYLE OF CAUSE: CHANGTAI ZOU
- and -
THE MINISTER OF CITIZENSHIP
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, January 9, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Thursday, March 27, 2003
APPEARANCES:
Timothy Leahy
FOR APPLICANT
Michael Butterfield
FOR RESPONDENT
SOLICITORS OF RECORD:
Timothy E. Leahy
509 - 5734 Yonge Street
Toronto, Ontario
M2M 4E7
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT