Digests

Zheng v. Canada (Minister of Citizenship and Immigration)

IMM-3898-00

2002 FCT 1115, Layden-Stevenson J.

25/10/02

19 pp.

Judicial review of visa officer's decision refusing application for permanent residence as self-employed chef-- Primary basis for decision that applicant did not meet definition of "self-employed person" as contained in Immigration Regulations, 1978, s. 2(1)--Application dismissed--As applicant unable to give any indication as to what intended to do, not when intended to do it, officer entitled to come to conclusion business proposals, identical in content to those submitted by other similarly situated applicants, not bona fides--Visa officer did not err in failing to consider certain amount of money in determining applicant's assets as applicant, bearing burden of proof in this regard, produced stale-dated bank statement after having been instructed to submit current information--No breach of procedural fairness--However, visa officer erred in failing to consider applicant's Chinese properties--Not breach of procedural fairness, but failure to consider evidence--Even if applicant had sufficient funds, as visa officer determined, based upon lack of experience, skill, expertise, that applicant did not have ability to establish business in Canada, error not material to result--Visa officer did mention fact applicant did not pay income tax in U.S.A., matter irrelevant in assessment of personal suitability, but did so in context of considering size of applicant's savings, noting that savings accumulated without burden of paying income tax--Size of savings account, in so far as providing possible forecast of future economic success in Canada, meaningful in context of personal suitability assessment--No error in assessment of personal suitability-- Visa officer did not fail to assess applicant in accordance with Regulations; did not err by focussing exclusively on definition of "self-employed person" in Regulations, s. 2(1) as applicant did not succeed in relation to either of tests in definition: visa officer found applicant's intended business in Canada would not make significant contribution to economy; applicant having neither sufficient business expertise nor ability to become successfully established in proposed business venture-- Furthermore, applicant did not obtain sufficient units of assessment--Visa officer did not err in failing to exercise discretion in applicant's favour--Discretion in Regulations, s. 11(3) exceptional, applicant must request visa officer exercise discretion--No unusual circumstances justifying Court should return matter with direction visa officer consider exercising discretion--"Self-employed" definition in Regulations, s. 2(1) not ultra vires as Governor in Council authorized to make such regulations--Importing "significant contribution" requirement into definition not ultra vires: Chan v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 612 (T.D.)-- Visa officer did not improperly apply "self-employed person" definition by focusing on lack of prior business experience-- Reasonably open to visa officer to conclude that applicant did not have ability to establish business in Canada, to conclude nothing enabling visa officer to conclude applicant would, through business, make significant contribution to economy, cultural or artistic life in Canada--Immigration Regulations, 1978, SOR/78-172, ss. 2(1) "self-employed person", 11(3).