Date: 19980227
Docket: IMM-1123-97
BETWEEN:
YA FEI DU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Wednesday, February 25, 1998 as edited)
ROTHSTEIN, J.:
[1] This is a judicial review from a January 29, 1997 decision of a visa officer refusing the applicants's application for immigration to Canada on the grounds that the applicant does not meet the requirements of the self-employment category. The applicant applied for immigration as a "medical acupuncturist". Apparently no licence to practice acupuncture is required in Ontario where the applicant intended to reside.
[2] Subsection 2(1) of the Immigration Regulations, S.O.R./78-172, a amended contains the definition of self-employed person.
| "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; |
[3] The reasons given by the visa office for refusing the application were, first, that the extent of the applicant's self-employment experience was not clear, second, that the enterprise of freelance acupuncture would not make a significant contribution to the economy or cultural or artistic life of Canada, and third, that with a personal net worth of only $80,000, the applicant had insufficient funds to establish a business and to settle herself and her dependants in Canada. The applicant says the visa officer erred in placing undue emphasis on the applicant's lack of self-employment experience, in not giving the applicant an opportunity to respond to concerns of the visa officer respecting the question of significant contribution, and because the visa officer was confused as to applicant's net worth.
[4] It does appear that the visa officer placed heavy emphasis on the applicant's experience or lack thereof as a self-employed acupuncturist. The applicant relies on cases such as Yang v. Canada (M.E.I.) (1989), 27 F.T.R. 74; 8 Imm. L.R. (2d) 48, aff'd (1990), 111 N.R. 148 (F.C.A.) and Grube v. Canada (M.C.I.) (1996), 118 F.T.R. 163; 34 Imm. L.R. (2d) 219, which appear to stand for the proposition that a visa officer commits a reviewable error if undue emphasis is placed on the issue of past experience. The headnote in Yang states:
The visa officer in this case interpreted the regulations in such a narrow fashion as to render qualification virtually impossible and, as a result, treated the applicant unfairly. A proper analysis requires consideration of three questions: is the applicant an accomplished musician?; can he teach?; and can he be self-employed as a teacher? The applicant in this case was successful on the first two questions and was partially successful on the third. Her only failure in respect of the third question was her lack of actual experience as a self-employed teacher. By placing undue emphasis on her lack of experience as a self-employed teacher, the visa officer allowed that partial failure on the third question to override success on the other two, an interpretation that made it almost impossible for the applicant to succeed.
[5] While a visa officer may commit a reviewable error by placing undue emphasis on past experience, cases such as Yang and Grube must be applied with care because they deal with applications for immigration based on the ability to make a significant contribution to the artistic or cultural life of Canada, qualifications expressly recognized in the definition of self-employed person in the Regulations. In Yang, the applicant was an accomplished musician. In Grube, the applicant was, amongst other things, a prima ballerina. In those cases the applicants wanted to teach music or coach and teach ballet in Canada. The test applicable to those cases - whether the applicant is accomplished in his or her field, whether he or she can teach, and whether he or she can be self-employed as a teacher - are not easily adaptable to other businesses or professions. Where the contribution to be made is artistic or cultural, past business experience, even in the cultural or artistic field in question may be of little importance, especially when the applicant wishes to be a self-employed teacher. However, where the contribution is to the Canadian economy and there is therefore greater emphasis on the commercial nature of the business, past business experience may be quite important.
[6] In the present case, the visa officer seems to have gone to considerable lengths to understand the applicant's status, that is whether she was employed by others or was self-employed. I have serious doubt that the visa officer properly appreciated the information provided by the applicant. The visa officer seems to have concluded there were inconsistencies in the applicant's evidence respecting whether she earned a salary or was self-employed. The visa officer was unclear as to applicant's arrangements with hospitals or other institutions. Without going into detail, my review of the visa officer's affidavit reveals no inconsistencies or lack of clarity in the information.
[7] The applicant had been an acupuncturist since 1984 and had some type of fee-sharing arrangement with hospitals and other facilities in Beijing at least since May of 1995. The visa officer apparently drew a negative inference from the fact that the applicant said she had a joint venture with the Long Xing Medical Equipment Scientific and Technical Development Company of Beijing, but had no joint venture agreement. The visa officer's expressed concern with inconsistencies and absence of documents ignored the circumstances in which the applicant was providing professional services. The applicant was a sole practitioner of acupuncture with affiliations with hospitals and/or other facilities. Her arrangements with these institutions appear to have been "loose", involving some type of fee splitting. Hers was not a commercial venture in which one would expect to see financial statements or other contractual or business documents. That there was no joint venture agreement is not surprising. The fee splitting information is relatively straight forward.
[8] The visa officer found that the applicant did not meet the definition of self-employed person, because she was not satisfied the applicant had the ability to establish a business in Canada, and thereby, to become self-supporting. The visa officer said that the extent of the applicant's self-employed experience was not clear. With respect, as I have said, I think it was the visa officer who may have misunderstood. The information provided by the applicant as to her self-employed status is quite clear.
[9] However, the question for the visa officer was not just whether the applicant's past experience demonstrated an ability for her to establish a business and become self-supporting. The business must provide a significant contribution to the Canadian economy. Experience as a sole practitioner of acupuncture does not necessarily provide the experience required to establish a business that would make a significant contribution to the Canadian economy. Without exhaustively listing the relevant criteria, a visa officer might well be interested in matters such as and applicant's experience as an employer, manager, in obtaining financing etc. A visa officer could not be criticized for placing emphasis on such past experience. The point is that visa officers must adapt their past experience assessment to the circumstances of each case having regard to the requirements of the Regulations.
[10] In the present case, the visa officer seems to have misdirected herself in the past experience enquiries she conducted. However, it is not necessary for me to decide whether this constitutes a reviewable error.
[11] The applicant must satisfy the requirement that the business she will establish in Canada will create a significant contribution to the economy or cultural or artistic life of Canada. There is no suggestion that an acupuncture business would make a contribution to the cultural or artistic life of Canada. The only question is whether it would make a significant contribution to the Canadian economy.
[12] The only evidence on this issue before the visa officer was a letter from the Sheppard Rehabilitation Centre dated August 12, 1996, which stated "We would like to implement the Chinese acupuncture therapy within our clinic." Assuming, without deciding, that the provision of acupuncture therapy is a business that would make a significant contribution to the Canadian economy, the evidence does not demonstrate that the applicant will establish or purchase that business.
[13] In the material before me, there were three versions of the Rehabilitation Centre's letter of August 12, 1996. Apparently, the first two versions were sent to the visa officer in error. Applicant's counsel advised that the first two versions were drafts and the third is the one that should have been considered by the visa officer. The first version states "we would be glad to employ her" (the applicant). The second version states "we would be glad to retain her as a freelance acupuncturist". The final version states "we would be glad to refer her some patients". Applicant's counsel advised that the revisions were made by his office. The visa officer had the first two versions of the letter. The final version was not forwarded to the Court as part of the tribunal record, although applicant's counsel says it should have been before the visa officer. In her affidavit the visa officer states:
Given the close relationship the Applicant had established with the Sheppard Rehabilitation Centre, I had doubts as to whether the Applicant was in fact planning to rely on employment through the Sheppard Rehabilitation Centre, rather than intending to set up her own self-employed business. However, this letter from the Sheppard Centre was the only evidence presented by the applicant indicating any sort of business plan in Canada. It was ambiguous.
[14] Indeed, the letter was, to say the least, ambiguous. The inference drawn by the visa officer was that there was a close relationship between the applicant and the Rehabilitation Centre. Given the nature of the revisions made to the August 12, 1996 letter by counsel, which appear to have been crafted to fit the definition of self-employed person, I think the visa officer was correct. She appropriately placed little or no weight on the letter.
[15] Whichever version of the letter is relied on, it does not demonstrate that the applicant will be establishing a business that would make a significant contribution to the Canadian economy. Either she is to be employed, she will be a freelance acupuncturist or the Rehabilitation Centre will refer some patients to her. If there is to be a business that will make a significant contribution, it is the business of the Rehabilitation Centre and not that of the applicant.
[16] After the applicant's interview, counsel for the applicant submitted a further letter to the visa officer which was considered before the decision was rendered. I do not think it can be said that the applicant was denied the opportunity to make submissions to the visa officer on any issue of relevance to her application. On the evidence before her, the visa officer did not err in concluding that the applicant's intended business would not make a significant contribution to the economy or the cultural or artistic life of Canada.
[17] It is not necessary to deal at length with the alleged error by the visa officer with respect to the applicant's net worth. The visa officer's affidavit refers both to an amount apparently told to her by the applicant at her interview of about $41,000 and the sum of $80,000 subsequently provided by counsel. Suffice it to say, her decision refers to $80,000 which the applicant says is correct. I do not think the visa officer was confused about the applicant's net worth.
[18] The visa officer's conclusion that the applicant did not meet the definition of self-employed person is not in error. The judicial review is dismissed.
"Marshall Rothstein"
Judge
Toronto, Ontario
February 27, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1123-97
| STYLE OF CAUSE: YA FEI DU |
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: FEBRUARY 25, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: ROTHSTEIN, J.
DATED: FEBRUARY 27, 1998
APPEARANCES:
Mr. John Y.C. Lee
For the Applicant
Ms. Sally Thomas
For the Respondent
SOLICITORS OF RECORD:
John Y.C. Lee
418-4002 Sheppard Avenue East
Scarborough, Ontario
M1S 1S6
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980227
Docket: IMM-1123-97
BETWEEN:
YA FEI DU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER