Date: 20010427
Docket: IMM-1765-00
Neutral citation: 2001 FCT 399
Ottawa, Ontario, Friday the 27th day of April 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
MINGDAN ZHANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Zhang brings this application for judicial review from the decision of a visa officer made at the Canadian Consulate General in New York, U.S.A. on March 3, 2000 by which she rejected Mr. Zhang's application for permanent residence in Canada.
[2] Mr. Zhang was assessed as a self-employed chef, receiving 52 units of assessment as follows:
FACTOR UNITS
Age 10
Occupational Factor 10
SVP 07
Experience 00
Demographic Factor 08
Education 13
English 00
French 00
Self-Employed Units 00
Personal suitability 04
Total: 52
[3] The visa officer did not award 30 units of assessment as a result of Mr. Zhang's stated intent to be self-employed because Mr. Zhang did not satisfy her that he would be able to become successfully established in his occupation or business in Canada. In the refusal letter the visa officer stated:
I do not see from the documents that you have provided and from what you indicated at your interview that you have the ability to be able to establish successfully as a self-employed Chef/restaurant owner-manager. Although you have presented at interview two business proposals which were prepared for you, you were unable to explain or even comprehend the concepts outlined in these plans. It is not apparent to me from the material available and our discussion that you could establish and maintain a viable business. You were unable to identify any factor which would enable me to conclude that you would make a significant contribution to the economy, the cultural or the artistic life of Canada. Due to all of this, I am not satisfied that you would be able to become successfully established in Canada in your proposed business venture.
During the interview, I expressed concerns about the source and the amount of your assets in the PRC. Your lawyer offered to have various documents verified through the Canadian Embassy. In my view this is unnecessary since, even if I accept the truth of your claims, I remain unsatisfied with regard to your ability to become successfully established in your business or occupation.
[4] The chief error alleged in respect of the visa officer's decision was characterized as the visa officer's rejection of Mr. Zhang's assets. This was said to have ordained the outcome of the application. Mr. Zhang noted that the visa officer was concerned about the origin of his funds and argued that there is no direction to visa officers to inquire as to the origin of funds possessed by self-employed applicants. Mr. Zhang pointed, among other things, to the fact that in the CAIPS notes the visa officer concluded immediately following what is characterized as her rejection of his assets that Mr. Zhang did not meet the definition of a self-employed person.
[5] Having carefully reviewed both the CAIPS notes and the entire transcript of the cross-examination of the visa officer, I am unable to conclude that the visa officer rejected Mr. Zhang's assets or improperly inquired of their origin. I find the visa officer's questions were directed to confirming that the money in issue belonged to Mr. Zhang and that he could use it to establish a business. This was a legitimate inquiry.
[6] I accept, as stated by the visa officer both in the CAIPS notes and the refusal letter, that the application was rejected because Mr. Zhang failed to satisfy the visa officer that he had the ability to establish a business in Canada. Mr. Zhang countered that once the visa officer rejected his assets, which I find she did not do, the visa officer's mind was closed to further consideration. However, in the CAIPS notes prior to the discussion of assets are the visa officer's notes in respect of discussions concerning Mr. Zhang's business plan and his current position and knowledge thereof. This does not support the contention that the visa officer closed her mind to further consideration of the case once she canvassed Mr. Zhang's assets.
[7] As for the visa officer's reference in the refusal letter to the business plan, Mr. Zhang asserts that it was wrong for the visa officer to reject the business plan. Such plans were said to be submitted to help establish the feasibility of the business and to educate the visa officer. Summary rejection is not warranted solely on the ground that others presented the same projections. Mr. Zhang also asserts that the visa officer was not correct in asserting that he was unable to discuss the plan.
[8] Mr. Zhang admits that the business plan was discussed at the interview, stating in his affidavit that "[b]esides, I was not totally ignorant of the plan, as [the visa officer] asserts. I knew how much I would need to purchase a fast-food out-let; i.e., Cdn$60,000; and to finance it until, after three months, it would be operating profitably; i.e., Cdn$100,000; and, when she asked, I told her". In view of the limited extent of familiarity with the business plan which that evidence asserts, I am not prepared to impugn, because of the brevity of the CAIPS notes on the subject, the visa officer's testimony as to the discussion that took place concerning the plan.
[9] The visa officer was entitled, in my view, to draw the conclusions which she did from the fact that the plan was similar, if not virtually identical, to the business proposals of all other applicants from the People's Republic of China represented by Immigration North America, Inc. and who apply as self-employed persons in the occupation of chef, and from the facts that the applicant could only advise of the start-up costs, had not yet decided on whether to open a fast-food outlet or a Chinese restaurant, and could not respond to questions such as the procedure he would follow to start up the business, how the financial projections and forecast about cashflow were arrived at, and how the start-up figure was determined. I reject the submission that a business plan is attached to an application solely for the purpose of showing the viability of a proposal to the visa officer so that an applicant need not substantially understand the plan. In my view, where an applicant choses to submit a business plan to support his or her application, a visa officer is entitled to question an applicant on a proffered business plan and to draw reasonable conclusions from the answers or the lack thereof.
[10] From these conclusions it follows that I do not accept the submission that the visa officer had an arbitrary disregard for the evidence before her.
[11] Mr. Zhang next asserts that the visa officer erred in assessing the factors set out in Schedule I to the Immigration Regulations, 1978, SOR/78-172 ("Regulations").
[12] I_ have not been persuaded that the visa officer erred in awarding 4 units of assessment in respect of Mr. Zhang's personal suitability. As I have found no improper disallowance of assets it follows that this did not taint the assessment of personal suitability as asserted. The visa officer stated in her affidavit that in making the assessment she took several factors into consideration such as adaptability, motivation, initiative, resourcefulness and other similar qualities reflective of Mr. Zhang's ability to become successfully established in Canada. That evidence was not, in my view, successfully challenged on cross-examination. The visa officer stated that she also took into account that Mr. Zhang showed no knowledge of Canada or business conditions in Canada. Those were not irrelevant considerations to personal suitability, as they may evidence motivation or initiative.
[13] It was conceded that the visa officer erred in awarding no units of assessment in respect of experience and that 4 units should have been awarded. This would have resulted in a total of 56 units being awarded. This is well below the 70 units required for a visa to issue and I cannot conclude that the error was material to the visa officer's conclusion.
[14] The visa officer turned her mind to the issue of whether to exercise positive discretion to issue a visa pursuant to subsection 11(3) of the Regulations and I find no error in that consideration.
[15] In addition to conducting the assessment contemplated by subsection 8(1) of the Regulations the visa officer considered the definition of self-employed person. The visa officer was required to consider whether Mr. Zhang met that definition and I found no reviewable error in the officer's decision that Mr. Zhang had not established that he met the definition.
[16] Having reviewed the record in its entirety, I find that it was reasonably open to the visa officer to find that Mr. Zhang did not have the ability to establish a business in Canada, and to conclude that Mr. Zhang had not identified any factor which would enable the visa officer to conclude that he would make through his business a significant contribution to the economy, the cultural or the artistic life in Canada.
[17] While counsel for the applicant advanced before me an extensive and somewhat innovative argument that due to demographic factors and a shortage of cooks Mr. Zhang would make a significant contribution to the Canadian economy, there is no evidence that this argument and supporting evidence was advanced before the visa officer.
[18] In the result, I have found that the decision of the visa officer was reasonably open to her to make on the material before her and that there is no evidence of bad faith or consideration of extraneous matters. Therefore, the application for judicial review will be dismissed.
[19] Counsel for the applicant proposed for certification a question relating to the propriety of any consideration of the origin of an applicant's funds. I have found that no such consideration took place in the present case in that the officer was confirming that the money was available for Mr. Zhang's use. Nor am I persuaded that the question is one of general importance. No question is certified.
ORDER
[20] IT IS HEREBY ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge