MEILI CHEN Applicant - v. -, 2003 FCT 368

Date: 20030328 Docket: IMM-1603-01 Neutral citation: 2003 FCT 368 Ottawa, Ontario, this 28th day of March, 2003 PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE BETWEEN: MEILI CHEN Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER O'KEEFE J. [ 1 ] This is an application for judicial review of the decision of a visa officer at the Canadian Consulate General in New York, dated March 15, 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 visa officer's decision; 2. An order in the nature of a writ of mandamus ; or in the alternative, a direction, requiring the respondent to issue the applicant's immigrant-visas; 3. An order in the nature of a writ of mandamus ; or in the alternative, a direction, requiring the respondent, if the applicant is re- interviewed, either to record the interview or to permit her counsel to attend, and to bear all costs, including professional fees, the respondent causes the applicant to incur; 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 mandamus compelling an officer to conduct a bona fide R11(3) review or to approve the applicant for an immigrant visa; 6. 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; 7. Any favourable orders the Court considers appropriate; and 8.

Legal fees in the amount of $8,600 plus examination expenses. Background [ 3 ] The applicant is a citizen of China residing in the United States without legal status. On May 20, 1998, the applicant's application for permanent residence in Canada, in the self-employed category, was received. She stated her present and intended occupation as being "Head Chef". On her application, it was represented that she had been employed in China and the United States as a cook, chef or head chef, from 1984 to the present.

The applicant intended to open a Chinese restaurant in British Columbia. [ 4 ] On March 6, 2001, the visa officer interviewed the applicant at the Canadian Consulate General in New York. An interpreter was present at the interview. [ 5 ] By letter dated, March 15, 2001, the visa officer informed the applicant that her application for permanent residence in Canada had been refused.

The letter stated: I have now completed the assessment of your application and based on the information your provided on your application and at your interview, I regret to inform you that I have determined that you do not meet the requirements for admission to Canada. You were assessed as a self-employed Chef (NOC 62413). A breakdown of your assessment follows.

Age 10 Occupational Factor 00 S.V.P./ETF 07 Experience 00 A.R.E. 00 Demographic Factor 08 Education 13 English 00 French 00 Bonus 00 Suitability 03 TOTAL 41 . . . As I am not satisfied that you will be able to become successfully established in your occupation or business in Canada, I am unable to award you 30 units of assessment as a self-employed applicant. I do not see from the documents that you have provided at interview and from what you indicated that you have any experience either as Head Chef or as a self-employed person.

You have been unable to substantiate the fact that you ever ran a business or been a self- employed person. At interview, you had no credible documents proving that you actually worked as a Head Chef. In my opinion, you do not have the in depth experience, the skills, the expertise nor the ability to be able to establish successfully as self-employed Head Chef. 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. . . . [ 6 ] This is the judicial review of the decision of the visa officer.

Applicant's Submissions [ 7 ] The applicant submits the visa officer fettered her discretion. The applicant submits that the visa officer doomed her application from the beginning as the applicant had no official confirmation of her income in the United States, such as income tax records, and the visa officer refused to accept that the applicant had been employed as a chef or had the assets she claimed to have. It is submitted that this refusal and arbitrary rejection of her assets and experience goes to the heart of her application and is sufficient to merit setting aside the decision.

The applicant submits that the visa officer further fettered her discretion by basing her decision, in part, on the applicant never having been in business for herself and thereby implicitly alleged that she had falsely claimed such experience. [ 8 ] The applicant submits the visa officer factored into her analysis improper considerations, such as the applicant's husband's inability to speak English and the applicant not opening a business while illegally in the United States. [ 9 ] The applicant submits the visa officer made erroneous findings of fact that included finding the applicant had no supervisory role, the applicant did not know the name of the person from whom she ordered supplies, and the applicant did not know where her supplier was located. [ 10 ] The applicant submits the visa officer was biased as she was inclined to make negative findings without evidence, refused to make any effort to confirm whether the applicant worked in the restaurant she claimed to have worked, placed excessive emphasis on income tax records and revenged against those people, such as the applicant, without proper immigration status in the United States.

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 never even considered whether the applicant was likely to be self-supporting in the province of her intended destination.

It is also submitted that the visa officer was biased towards the applicant and similarly situated applicants and that this was demonstrated when counsel refused to allow the visa officer to answer questions about how she has handled similarly situated applicants. [ 11 ] The applicant notes that this application is the third one arising out of the same visa application and submits 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 [ 12 ] The respondent submits that the visa officer, in determining that the applicant did not meet the definition of a "self-employed person", exercised her discretion in good faith, and did not err in law or breach the duty of fairness appropriate to this discretionary, administrative decision. [ 13 ] The respondent submits that in order to succeed in this judicial review application, the applicant must show there was either an error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this discretionary decision. [ 14 ] The respondent submits that the affidavit of Priscilla Lee, assistant to the applicant's solicitor, is improper and inadmissible, and should be accorded no weight.

It is submitted that the affidavit does not verify any facts concerning the applicant's application for permanent residence, but rather consists of a series of the author's statements of opinion and belief. It is submitted that this affidavit violates the Federal Court Rules, 1998, S.O.R./98-106 . [ 15 ] The respondent submits the applicant's application was rejected because she failed to satisfy the visa officer that she had the ability to establish a business in Canada.

It is submitted that the visa officer found the applicant not to be credible and that this general finding extended to all relevant evidence. [ 16 ] The respondent notes the applicant failed to challenge the visa officer's adverse inferences concerning credibility or the overall conclusion in this regard. As such, the respondent submits the issue of alleged fettering raised by the applicant is therefore irrelevant. In any event, the respondent submits the allegation of fettering is not well-founded.

It is submitted that it was not unreasonable in the circumstances that the visa officer was not persuaded that the applicant's claimed assets were hers to dispose of. [ 17 ] The respondent submits that past business experience is not the sole criterion to be considered, but is an important factor in the assessment of the applicant in the self-employed "economic" category.

It is submitted that the visa officer's decision correctly indicted that, in addition to a lack of credible evidence supporting the applicant's claimed work experience, there was a total absence of past business experience. [ 18 ] The respondent submits the visa officer did not base her decision on the applicant's husband's lack of English skills, or the fact the applicant did not open a business in the United States.

It is submitted that these were merely two answers noted by the visa officer during the interview. [ 19 ] The respondent submits that the visa officer's negative inferences were abundantly reasonable on the record before her. [ 20 ] The respondent submits that the applicant's allegations of bias and bad faith are unfounded. It is submitted that if the applicant was of the opinion that any of the refusals on cross-examination of the visa officer were not justified, it was open to the applicant to bring a motion to compel her to answer. [ 21 ] 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 an erroneous finding of fact? 4. Did the visa officer fail to conduct a bona fide interview? 5. Is the visa officer bias against applicants such as Meili Chen? 6. Should the respondent pay significant legal fees to the applicant? Relevant Statutory Provisions and Regulations [ 22 ] The relevant sections of the Immigration Act , R.S.C. 1985, c. I-2, state: 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. [ 23 ] The relevant sections of the Immigration Regulations, 1978 , S.O.R./78-172, state: 2.(1) "self-employed person" means an immigrant who intends and 2.(1) « travailleur autonome » s'entend d'un immigrant qui a

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; 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) 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 . . . (

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) 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. 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: . . .

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) 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) 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, (

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.

(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 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) 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.

(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) refuse to issue an immigrant visa to an immigrant who is

b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de

(

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.

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. Analysis and Decision [ 24 ] Issue 1 Did the visa officer fetter her discretion by importing her own criteria?

The applicant submits the visa officer fettered her discretion by dooming the application from the start as the applicant had no official confirmation of her U.S. income, such as income tax records, and the visa officer failed to accept the applicant had been employed as a chef or had the assets she claimed to have.

The applicant submits the visa officer further fettered her discretion by basing her decision, in part, on the applicant never having been in business for herself. [ 25 ] The respondent submits the applicant's application was rejected because she failed to satisfy the visa officer that she had the ability to establish a business in Canada. [ 26 ] The visa officer's refusal letter, dated March 15, 2001, states, in part, as follows: I do not see from the documents that you have provided at interview and from what you indicated that you have any experience either as Head Chef or as a self-employed person.

You have been unable to substantiate the fact that you ever ran a business or been a self- employed person. At interview, you had no credible documents proving that you actually worked as Head Chef. In my opinion, you do not have the in depth experience, the skills, the expertise nor the ability to be able to establish successfully as self-employed Head Chef. 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.

A review of the visa officer's affidavit discloses that there was a concern that the applicant had not been employed as a chef and that she did not have access to the funds that she stated she had available to her to establish a restaurant in Vancouver. Paragraph 9, 15, 16 and 17 of the visa officer's affidavit read as follows: Ms. Chen also told me that she has been working as a Head Chef in the USA from 1993 to the present. She works in New York City at the "No. 1 Wo Hop" Chinese Restaurant. She presented at the interview a photocopy of an employment letter dated August 3, 1999.

She indicated that she is still working for the same restaurant. She said that her lawyer did not advise her to bring an updated reference letter with her. As per this letter, she earns US$2,400 a month. The letter did not describe her duties as a Head Chef. Ms. Chen told me that she has no further proof of her employment such as W-2 forms (employer earnings

summary), pay statements, check-stubs, income tax documents or a valid employment authorization card. Ms. Chen presented bank statements from HSBC and Cathay Bank in New York for a total of US$40,928.66. In China, she has US$88,000 at the Bank of China and RMB181,400 at the People Post Savings of China, an amount equivalent to US$21,940.54. Ms. Chen told me that the funds in her accounts came from her wages. However, she had no objective, verifiable documentation to substantiate this. Ms. Chen then indicated that in 1995 she sold a house that she owned in China and placed that sum in her account.

However, she could not provide any evidence that she had ever owned or sold a house in China in 1995. I advised Ms. Chen that I was not satisfied that the amounts shown in her accounts represented money that she had earned through her alleged employment. Nor was I satisfied that these funds were Ms. Chen's to dispose of or use to establish a business in Canada. [ 27 ] The visa officer seems to have taken the position that because the applicant did not prove her U.S. income by official documents she did not work as a chef in the United States.

This position does not accord with the contents of a letter from the applicant's U.S. employer, the No. 1 WO HOP Chinese Restaurant, dated August 3, 1999. The applicant testified at the hearing that she was still employed there. The letter reads as follows: August 3, 1999 To Whom It May Concern This is to certify that Ms. Mei Li CHEN has been employed by our restaurant as a Head Chef since November 1993. She was promoted to be a Head Chef on April, 1994. She is the leader of six employees. Her gross income is $2,400 per month. Her job is permanent in nature.

By the way, our restaurant has 1,800 square foot and 80 tables. She is also the manager at our restaurant. Please feel free to contact me if you need further information regarding this employment. The visa officer does not specifically say why this letter was rejected in its entirety. This letter would seem to say that the applicant was for some period of time, employed as a head chef. [ 28 ] As well, it is obvious from paragraph 17 of the visa officer's affidavit that the visa officer did not believe that the funds had

been earned through her alleged employment. It is not a requirement of the Immigration Act, supra or the Immigration Regulations, 1978, supra that a self-employed applicant's funds be earned from employment.

As well, I can find no evidence to show that the funds were not available to the applicant to establish a business in Canada. [ 29 ] I am of the opinion that these findings made by the visa officer are unreasonable and thus, subject to review. [ 30 ] Because of the conclusion I have reached on this issue, it is not necessary that I deal with the other issues, with the exception of costs, the vires of subsection 350(3) of the Immigration and Refugee Protection Regulations , S.O.R./2002-227 (the " Regulations ") and the certification of the question proposed by the applicant. [ 31 ] I have considered the submissions of the parties with respect to costs and I am not prepared to make an award of costs as the applicant did not succeed on all of the issues raised (the applicant failed on the ultra vires issue). [ 32 ] Subsection 350(3) of the Regulations , supra , states: 350.

(3) If a decision or

an act of the Minister or an immigration officer under the former Act in respect of a person described in subparagraph 9(1)(b)(

i) or paragraph 10(1)(

b) of the former Regulations is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before the date of the coming into force of this section, the determination shall be made in accordance with subsections 361(3) and (5) of these Regulations . 350.

(3) Il est disposé conformément aux paragraphes 361(3) et (5) du présent règlement de toute décision ou mesure prise par le ministre ou un agent d'immigration sous le régime de l'ancienne loi à l'égard de la personne visée au sous-alinéa 9(1)b)(

i) ou à l'alinéa 10(1)

b) de l'ancien règlement qui est renvoyée par la Cour fédérale ou la Cour suprême du Canada pour nouvel examen et dont il n'a pas été disposé avant l'entrée en vigueur du présent article. [ 33 ]

Section 190 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (" IRPA ") states: 190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this

section shall be governed by this Act on that coming into force. 190. La présente loi s'applique, dès l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise. And

section 201 of IRPA states: 201. The regulations may provide for measures regarding the transition between the former Act and this Act, including measures regarding classes of persons who will be subject in whole or in part to this Act or the former Act and measures regarding financial and enforcement matters. 201. Les règlements régissent les mesures visant la transition entre l'ancienne loi et la présente loi et portent notamment sur les catégories de personnes qui seront assujetties à tout ou

partie de la présente loi ou de l'ancienne loi, ainsi que sur les mesures financières ou d'exécution. I am of the view that

section 201 of IRPA provides authority for subsection 350(3) of the Regulations , supra , and therefore subsection 350(3) of the Regulations , supra is not ultra vires . [ 34 ] The applicant also submitted that

section 190 of IRPA only applied to applications and proceedings under the Immigration Act, supra that were pending or in process before the coming into force of

section 190 and the current application was not pending before the Immigration Act, supra (for example, an appeal before the Immigration Appeal Division or the Refugee Board), but before the Federal Court. I do not accept this proposition. I believe that

section 190 applies to the present application. I am not prepared to

schedule the rehearing date of this matter. [36] The application for judicial review is allowed and the matter is referred to a different visa officer for redetermination. [37] The applicant submitted the following proposed serious question of general importance for certification: Is subsection 350.(3) of the Regulations , supra, ultra vires of IRPA ? I am prepared to certify this question. ORDER 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: Is subsection 350.(3) of the Regulations , supra, ultra vires of IRPA ? "John A. O'Keefe"

J.F.C.C. Ottawa, Ontario March 28, 2003 FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-1603-01 STYLE OF CAUSE: MEILI CHEN - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: Thursday, November 28, 2002 REASONS FOR ORDER AND ORDER OF O'KEEFE J. DATED: Friday, March 28, 2003 APPEARANCES : Mr. Timothy Leahy FOR APPLICANT Mr. Stephen H. Gold FOR RESPONDENT SOLICITORS OF RECORD : Mr. Timothy Leahy Suite 509 5734 Yonge Street Toronto, Ontario M2M 4E7 FOR APPLICANT Morris Rosenberg, Q.C. Deputy Attorney General of Canada FOR RESPONDENT