Date: 20000307
Docket: IMM-158-99
BETWEEN:
LI WEI HAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicant seeks an order setting aside a visa officer's decision refusing to issue him a visa as a self-employed or entrepreneur immigrant.
[2] The first issue raised by the applicant is the applicable standard of review in these cases, in the light of the recent Supreme Court decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Counsel for the applicant argues that it is reasonableness simpliciter, i.e. that the decision is not a reasonable one, (herein after "unreasonableness simpliciter"). Counsel for the respondent argues that it is patent unreasonableness.
[3] In the Baker case, Madame Justice L'Heureux-Dubé, in writing for the Court, indicated that the applicable standard was to be determined by considering a number of factors: the presence or absence of a privative clause; the expertise of the decision-maker; the purpose of the provision of the legislation pursuant to which the decision under review was made (e.g., the degree of discretion afforded to the decision-maker); the nature of the question raised in the review and, particularly, whether it relates to a determination of law or fact.
[4] Two of my colleagues have adopted the test of unreasonableness simpliciter as applicable to the review of a visa officer's decision: Zheng v. Canada (Minister of Citizenship and Immigration) (IMM-3809-98, January 10, 2000) and Lu v. Canada (Minister of Citizenship and Immigration) (IMM-414-99, December 10, 1999). In Lu, Mr. Justice Muldoon, in weighing the factors, noted that questions of mixed fact and law and the absence of a privative clause weigh against the Court showing deference to the visa officer's decision; however, the expertise of the visa officer and the fact that the issues raised were not polycentric favoured deference by the Court.
[5] The difference of opinion as to the appropriate standard of review does not apply to questions of law, where the standard is one of correctness. Also, the appropriate standard is not usually a matter of debate in relation to questions of procedural fairness or procedural natural justice. Debate about the relevant standard of review relates to the review of the conclusions drawn by the decision maker from the application of the relevant law to the facts of the case.
[6] In the present case, there is no privative clause, and there is no requirement that leave be granted before a judicial review can proceed. There is a statutory right to judicial review, provided for by section 18.1 of the Federal Court Act. These factors tip the balance toward the unreasonableness simpliciter end of the scale.
[7] Visa officers have considerable expertise in assessing applicants. The decision-making is one that requires an assessment of the personal characteristics of individuals, and depends to a significant extend on a personal interview of the applicant. There is significant discretion given to visa officers, although that discretion is constrained by the existence of the points assessment system (see Zhao v. Canada (Minister of Citizenship and Immigration) (IMM-3382-98, February 17, 2000) ). These factors point to a standard that might be described as requiring a court to give deference even to an unreasonable decision.
[8] The particular questions raised in this judicial review are questions of mixed law and fact. As noted, Mr. Justice Muldoon, in Lu (supra), found this to be a factor leading to the conclusion that unreasonableness simpliciter is the appropriate test.
[9] I am prepared to adopt the standard of unreasonableness simpliciter as applicable to the visa officer's decision. I note that I have never been convinced that "patently unreasonable" differs in a significant way from "unreasonable". The word "patently" means clearly or obviously. If the unreasonableness of a decision is not clear or obvious, I do not see how that decision can be said to be unreasonable.
[10] I turn then to the applicant's arguments. The first argument counsel made was that the visa officer willfully misdescribed the applicant's evidence because she added comments in the CAIPs notes that were not found in her handwritten notes. Most significantly among these is "does not elaborate further, when asked to do so".
[11] I do not draw the same conclusions from a comparison of the CAIPs notes and the handwritten notes as counsel for the applicant draws. The CAIPs notes were entered a week after the interview. The visa officer would likely remember the interview fairly clearly at that time, especially given the handwritten notes she had kept. The handwritten notes would not be exhaustive of all that was said at the interview. In this case, there is no reason to doubt the credibility of the CAIPs notes.
[12] The applicant's credibility, on the other hand, is not without blemish. In his application for an immigrant visa he asserted that he spoke, read and wrote English fluently. When he arrived at the interview, the visa officer discovered that he could not conduct a simple conversation in English, and she had to call in an interpreter. The applicant continues to assert that he uses English daily, and that he did not need an interpreter for the interview, even though the results on the tests the visa officer gave him clearly demonstrate his lack of facility in reading and writing the language.
[13] Another area in which his credibility becomes questionable, is the attempt in his affidavit to explain away statements he made at the interview. While discussing the possibility of using Canadian cold rolled steel sheets for the manufacture of barbecues in China, the visa officer's notes indicate that she asked him "How are you certain this would be profitable for you?". She recorded his response as "Because we are in control of majority of markets, so we can determine - can set prices as we wish."
[14] The visa officer relied upon this comment as an illustration of the applicant's lack of business knowledge and acumen. The applicant in his affidavit characterizes what he said as being a statement about the leverage he would have in China to require the use of Canadian steel for the manufacture of barbecues in China, because he has a substantial number of European barbecues orders. There is absolutely no reason for the visa officer to have recorded in her notes words what the applicant did not say, and his subsequent attempt to explain them away does not enhance his credibility.
[15] The applicant's second argument is that he was not given notice of the visa officer's concerns and was not given an opportunity to respond to her concerns, e.g., that his skills were not transferable to the Canadian market, and that he had done little preparation and had little knowledge of the Canadian market. The visa officer states that she did express her concerns and give the applicant an opportunity to respond, as it is always her practice to do. In addition, the visa officer"s handwritten notes reflect that she recited to the applicant her concerns, and the notes record a response by the applicant or the applicant's wife.
[16] Counsel for the applicant argues that this is insufficient because by the end of the interview the visa officer had made up her mind and the applicant would naturally assume there was no point in saying anything further. Counsel argues that the visa officer should have given the applicant an opportunity earlier in the interview to answer her concerns.
[17] To accept this argument, in my view, would be to apply too formalistic an approach to the conduct of an interview. The visa officer's concerns are reflected in the questions she asked the applicant during the interview. This is not a case where a visa officer relied on a concern that was completely divorced from the subjects covered at the interview, or on evidence not disclosed to the applicant. Nor is it a situation in which the applicant was left with the impression that the visa officer had reached a certain conclusion on a matter, only to find out later that the conclusion was exactly the opposite.
[18] It is unduly artificial to suggest that there was a breach of fairness because the visa officer did not articulate, as she was proceeding with the interview, her concerns with the applicant's evidence. Indeed, had she done so, it is likely a review of her decision would now be being sought because she had been unduly confrontational, or had exhibited a closed mind.
[19] The visa officer summarized her concerns at the end of the interview and asked for comments. It is fair to characterize this as the expression of a provisional opinion, on which the applicant was asked to comment, and which the officer was prepared to change in response to those comments. The applicant was apprised of the visa officer's concerns and given an opportunity to respond to them.
[20] The applicant's main argument is that the visa officer misinterpreted the definition of an entrepreneur immigrant, particularly, in requiring that a business plan exist:
| . . . |
| In assessing your application, I have taken into consideration that you were unable to adequately explain how you will establish and operate a business in Canada and appear to have no knowledge how to do so. You were unable to demonstrate that you have knowledge of Canadian business conditions and requirements with respect to your proposed business, and you were unaware of the cost of doing business in Canada. |
| While you have been involved in the management of the Wen Ming company in China, I am not satisfied that the skills you have are transferable to the Canadian business environment. In addition, I have noted that your limited ability in the English language would present difficulties in conducting business in Canada. |
| . . . |
[21] Counsel refers to the application form that the applicant was asked to fill out. The answers he provided are in italics:
| YOUR BUSINESS PLAN |
| To be completed by Entrepreneur and Self-employed Applicants |
| 1. Have you decided upon a specific business venture? Yes No XX |
| a) If yes, please provide details in the space below of the location, type of business, number of employees, amount of capital to be invested, activities of the company, your position and responsibilities. |
| b) If no, please tell us in your own words in the space below of your plans. Please identify the sector in which you plan to be involved, if known, the amount of capital you have available for investment and outline the nature of the business you plan to establish. |
| Although I have not decided on a specific venture, I would like to investigate fully the potential for importing China-made barbeques [sic] to Canada and the U.S. In addition, I will consider other types of import/export or technology transfer between Canada and China, depending on the market, or a fully domestic enterprise. I do not wish to commit to a specific venture at this time, as I wish to maintain flexibility. I will be able to immediately invest approximately $140,000.00 CDN, and may be willing to invest up to approximately $250,000.00 if I decide to sell any property. |
[22] While the questions do not ask a prospective immigrant to commit to a specific business venture, they do ask for "an outline of the nature of the business you plan to establish". The applicant's "plan" was "to investigate" the market. He identified three possible areas of business activity: exporting leisure music CDs from Canada to China; importing barbecues from China into Canada; using Canadian aluminum or hot or cold rolled steel for the manufacture of barbecues in China.
[23] Counsel for the applicant argues that it is unfair for the application form to indicate that an applicant does not have to choose a specific business sector and then penalize him for not knowing enough about relevant duties and taxes. She argues that it is illogical to assess the transferability of an applicant"s skills by reference to his knowledge of a given market - one can learn about a specific market. She argues that this applicant has a long and strong track record, exporting barbecues from China to the European market for years.
[24] The Immigration Regulations, 1978, as amended define an entrepreneur immigrant:
"entrepreneur" means an immigrant
(a) who intends and has the ability to establish, purchase or make a substantial investment in a business or commercial venture in Canada that will make a significant contribution to the economy and whereby employment opportunities will be created or continued in Canada for one or more Canadian citizens or permanent residents, other than the entrepreneur and his dependants, and
(b) who intends and has the ability to provide active and on-going participation in the management of the business or commercial venture; (entrepreneur)
"entrepreneur" désigne un immigrant
a) qui a l'intention et qui est en mesure d'établir ou d'acheter au Canada une entreprise ou un commerce, ou d'y investir une somme importante, de façon à contribuer de manière significative à la vie économique et à permettre à au moins un citoyen canadien ou résident permanent, à part l'entrepreneur et les personnes à sa charge, d'obtenir ou de conserver un emploi, et
b) qui a l'intention et est en mesure de participer activement et régulièrement à la gestion de cette entreprise ou de ce commerce; (entrepreneur)
[25] It is not unreasonable, then, for the visa officer to have explored with the applicant his business plans and his knowledge of the Canadian business environment, including relevant duties and taxes, the cost of purchasing materials, the cost of establishing an office, paying salaries, and the cost of transportation of goods. If an entrepreneur applicant asserts that he intends to export Canadian steel to China to manufacture barbecues there, a visa officer cannot be faulted for having expected some credible explanation as to how that could be profitable.
[26] Questions concerning an applicant's knowledge of the Canadian business environment are relevant to an assessment of the seriousness of his intentions and of his ability to carry out those intentions. If a person's business plans are not realistic or if they are excessively vague, it is unlikely that he has the ability to meet the requirements for an entrepreneur immigrant. In addition, I do not read the visa officer's refusal letter as basing her decision that the applicant skills were not transferable on his lack of knowledge of the Canadian business environment. The letter (supra) treats the transferability of his skills and his lack of knowledge of the Canadian business environment as separate points.
[27] An assessment of the transferability of skills requires both an evaluation of the business activity in which the applicant has been involved and its relevance to the Canadian environment. In this case, while counsel for the applicant described the applicant as "the senior manager of a large profitable barbeque [sic] export enterprise, Landmann (Europe), with its head office in Germany", the applicant's evidence was that he supervised a staff of ten as the manager in charge of a branch of the company's business operations in mainland China. The visa officer's decision about lack of transferability cannot be characterized as unreasonable.
[28] Counsel argues that the visa officer erred because her decision focused on the applicant's ability to establish a business and ignored his ability to purchase or invest in one.
[29] A review of the visa officer's handwritten notes, the CAIPs notes, and the applicant's affidavit show that this focus arose because the applicant's focus in his presentation to the visa officer was on the prospective establishment of a business. The evidence the applicant presented with respect to investment possibilities was not ignored. The evidence was referred to in the officer's analysis, but it was not the main focus of attention because the applicant did not discuss it in the interview.
[30] Lastly, counsel raised concerns about the English tests that were given to the applicant, and the visa officer's emphasis on the applicant's lack of facility in the English language as a reason for finding he did not meet the requirement expected of an entrepreneur immigrant.
[31] I am not persuaded that the language testing that was done was unreasonable, although I accept counsel's submission that it would be preferable for individuals to be given a text to read, the content of which is more closely related to their experience. Asking a potential immigrant questions on a text that discusses the Canadian Old Age Security pension and the Guaranteed Income Supplement does seem a bit unrealistic. In any event, it is clear the applicant lacked facility in English from the fact that the visa officer needed an interpreter for the interview. He also had very limited writing skills, as illustrated from the fact that he was only able to write one sentence in a five minute period on the topic given to him and the sentence he wrote was ungrammatical.
[32] Lastly, with respect to the argument that the visa officer placed undue emphasis on the applicant's lack of language skills when assessing whether he met the entrepreneur requirements, I do not need to consider this, because it was a secondary aspect of the visa officer's decision. Even if the visa officer erred in this regard, it would not change the decision.
[33] Counsel for the applicant proposed two questions for certification:
| 1. Is research into a specific venture in Canada required to satisfy the definition of entrepreneur with respect to the applicant's intention to establish, purchase or invest in a business? |
| 2. Is it permissible for a visa officer to take into account an entrepreneurial applicant's language abilities in determining whether or not a visa should be issued when the visa officer has already taken this factor into account under the selection criteria factor for language abilities? |
[34] In order to be certified, a question must raise a matter of general importance and be dispositive of the case in which it arises.
[35] I am not persuaded that either question meets those requirements. The application form that an applicant is asked to fill out indicates that a specific business venture does not have to be identified. Thus, the answer to the first question is clearly no. In addition, the visa officer's decision was not based on the applicant's failure to do research with respect to a specific business venture. It was based on his general lack of knowledge about the Canadian business environment, the vagueness of his business plans, and his localized business experience doing business in China.
[36] With respect to the second question, as noted above, the applicant's lack of facility in English was a secondary reason for the visa officer's decision. Thus, a determination of that question could not be dispositive of the applicant's case. Also, the issue was not pleaded in the terms in which the question has been raised and thus an evidentiary basis to support it has not been provided (i.e., it is not clear whether the visa officer ever prepared a points assessment of this applicant pursuant to section 8 of the Regulations.
[37] For the reasons given, the application for judicial review is dismissed.
____________________________
Judge
OTTAWA, ONTARIO
March 7, 2000