Federal Court Decisions

Date: 20020213

Docket: IMM-3591-00

Neutral citation: 2002 FCT 164

Ottawa, Ontario, the 13^th day of February 2002

PRESENT:      The Honourable Madam Justice Dawson

BETWEEN:

                                                  SVETLANA TURCINOVICA

                                                                                                                                          Applicant

                                                                        - and -

                      THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                      Respondent

                                       REASONS FOR ORDER AND ORDER

DAWSON J.

[1]                 Ms. Turcinovica brings this application for judicial review from the June 1, 2000 decision of a visa officer which refused her application for permanent residence in Canada in the self-employed category as an insurance agent.

THE FACTS

[2]                 Ms. Turcinovica came to the United States of America on a visa from Latvia. In the United States she worked from 1997 to 2000 as a financial service representative for Metropolitan Life in New York, selling life insurance and working as an account representative for people who wanted to invest in mutual funds and the like. Ms. Turcinovica worked for Metropolitan Life on a commission basis.

[3]                 In April 2000, Ms. Turcinovica began working for a teaching institution in New York as a regional coordinator. It was while resident in the United States that Ms. Turcinovica made her application for permanent residence in Canada in the self-employed category.

[4]                 Ms. Turcinovica described her intended business in Canada as follows:

I plan to be a self-employed, commissioned investment and insurance advisor. In addition to my sales, product and accounting knowledge, I am fluent in English, Russian and Latvian. I, therefore, intend to parlay my professional and linquistic [sic] skills to sell insurance and securities to individuals from the ethnic communities to which I belong because many of them do not possess sufficient command of English to venture into the areas in which I wish to specialize; namely, business-owners and individuals seeking to invest in registered educational saving, retirement and retirement income plans (RESP's, RRSP's, and RRIF's).

[5]                 The visa officer assessed Ms. Turcinovica in the occupation of self-employed insurance agent, awarding her 57 units of assessment. The visa officer did not award Ms. Turcinovica 30 units of assessment pursuant to subsection 8(4) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations") because the officer was not persuaded that Ms. Turcinovica met the definition of a self-employed person.

THE OFFICER'S DECISION

[6]                 In the CAIPS notes the officer wrote:

SHE INTENDS TO WORK IN CDA AS A SELF EMPLOYED INSURANCE SALES PERSON. SHE CLAIMS SHE WILL FIRST HAVE TO WORK FOR A CO AND LEARN THE SYSTEM AND THEN BECOME AN INSURANCE AGENT WHO WORKS FOR VARIOUS OTHER COMPANIES AND THEREFORE WILL HAVE MORE PROGRAMS TO PROVIDE TO CUSTOMERS. SHE WILL BE BASED IN THE OFFICE WHERE SHE WILL BE EMPLOYED BUT WILL WORK ON COMMISSION BASIS. SHE DOES NOT INTEND TO OPEN A BUSINESS OTHER THAN WORK FOR INSURANCE COMPANY.

THERE IS NO INVESTMENT TO MAKE TO SET UP BUSINESS SINCE THE COMPANY SHE WILL BE EMPLOYED FOR WILL PROVIDE HER WITH SPACE, PHONE LINES AND PROSPECTIVE CUSTOMERS. SHE DOES CONCEDE THAT SHE WILL HAVE TO CREATE A CLIENT BASE AND SELL HER PROGRAMS TO CUSTOMERS. TO DO SO SHE WILL HAVE TO FIND CLIENTS.

SHE DOES NOT HAVE A PROSPECTUS, BUSINESS PLAN, FORECAST. SHE HAS BEEN TO CDA ONCE BEFORE AND WENT TO VISIT SEVERAL INSURANCE CO. SHE PRESENTS NEWSPAPER CLIPPINGS, LETTERS ROM SOME OF THE INSURANCE AGENTS WILLING TO OFFER HER A POSITION, ETC.

SUBJECT DOES NOT MEET THE DEFINITION OF SE FOR THE FOLLOWING REASONS, 1. SHE HAS NOT IDENTIFIED ONE FACTOR TO SUGGEST SHE WILL BE ABLE TO START A BUSINESS IN CDA, SHE WILL BE, IN EFFECT, AN EMPLOYEE OF A CO AND WORK ON COMMISSION. SHE HAS NOT SHOWN SHE HAS EVER WORKED AS A SELF EMPLOYED PERSON AND WHILE IN USA WORKING IN HER INTENDED OCC, SHE EARNED $25K USD. SHE CLAIMS SHE WILL PROBABLY BE ABLE TO TRIPLE THAT AMOUNT IN CDA, BUT DOES NOT EXPLAIN HOW SHE INTENDS TO DO SO, CLAIMING ONLY THE PERCENTAGE AT SOME COMPANIES ARE HIGHER THAN OTHERS.

SHE HAS NOT SATISFIED THIS OFFICER THAT SHE HAS THE ABILITY TO ESTABLISH A BUSINESS IN CDA, NOR THAT THIS BUSINESS WILL BE A SIGNIFICANT BENEFIT TO CDA.

[7]                 In the refusal letter the officer wrote:

I have not awarded you the 30 unit bonus because you were unable to demonstrate that you meet the definition of a Self-Employed person. According to Canada's Immigration Regulations, 1978, a Self-Employed immigrant is "a person who intends and has the ability to establish or purchase a business in Canada that will create employment opportunity for himself or herself and will make a significant contribution to the economy or the cultural or artistic life of Canada". Specifically, you were unable to satisfy this officer that you have the intent and the ability to open a business in Canada or that it would create a significant contribution to the economy.

You claimed at interview that you have worked as an insurance agent here in the United States since 1998, working for MetLife. Your tax returns from this period confirm your employment and salary with this company which was listed at $25,000 per annum. You confirmed at interview that you were employed with this company on a commission basis and your business plan for Canada was to work as an insurance agent in the same capacity as you have worked in the US. You claimed you would be based in your employer's office and be provided with the necessary tools to conduct your business, such as phone lines, prospective clients, etc. You intend to work for several companies thereby enabling you to provide different plans to your customers.

You were unable to show how you had the intent to establish yourself in Canada as a self-employed person as described in the Canadian Immigration Act. You do not have any intention of establishing or purchasing a business, but rather you intend to work as an employee of an insurance company and work on a commission basis. If the expected salary in Canada would be similar to your earnings in the US, and there is no indication it would be significantly higher, in my opinion, that would not constitute a significant benefit to the Canadian economy.

THE ISSUES

[8]                 On Ms. Turcinovica's behalf it was argued that the visa officer erred because:

i)           The assessment was not in accordance with the Regulations.

ii)          The officer failed to consider the existence of positive discretion pursuant to subsection 11(3) of the Regulations.

[9]                 During oral argument counsel for Ms. Turcinovica did not press the argument that the officer failed in her duty to assess Ms. Turcinovica's common-law spouse. This issue was agreed to be moot due to the spouse's failure to pay the necessary processing fee.

[10]            On Ms. Turcinovica's behalf it was also alleged that the visa officer's supervisor erred by failing to intervene in a clearly improper decision when those errors were brought to the supervisor's attention, and that Ms. Turcinovica should receive costs.

ANALYSIS

(i) Preliminary Issue

[11]            At the commencement of oral argument counsel for the Minister submitted that the application for judicial review should be dismissed because it was not supported by a proper affidavit. Ms. Turcinovica had filed no affidavit and the application was supported by the affidavit of Ms. Turcinovica's lawyer's assistant. This was said to fall short of the obligation on an applicant to produce an affidavit based on personal knowledge. In consequence, it was urged on the Minister's behalf that the application should be dismissed because it was not supported by a proper affidavit.

[12]            The failure of an application to be supported by affidavits based on personal knowledge has been held not to result automatically in dismissal of an application for judicial review: see: Huang v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 788 (F.C.T.D.); Moldeveanu v. Canada (Minister of Citizenship and Immigration) (1999), 235 N.R 192 (F.C.A.); Ominayak v. Lubicon Lake Indian Nation, [2000] F.C.J. No. 247 reversed without comment on this point (2000) 267 N.R. 96 (F.C.A.).

[13]            In the present case, I am satisfied that the affidavit before the Court is sufficient to establish the fact of the application and its rejection. I am not, therefore, prepared to dismiss the application on this basis.

[14]            It is important to stress that where there is no evidence based on personal knowledge filed in support of an application for judicial review, any error asserted by an applicant must appear on the face of the record. See: Moldeveanu, supra, at para. 15.

[15]            This reflects the requirement of Rule 81(1) of the Federal Court Rules, 1998 that, except on motions, affidavits must be confined to facts within the personal knowledge of the deponent.

[16]            As the Federal Court of Appeal noted in Canadian Tire Corp. v. P.S. Partsource Inc. 2001 FCA 8; [2001] F.C.J. No. 181, Rule 81(1) is a rule of practice and procedure and so does not displace the common-law exceptions to the hearsay rule, including the reliability and necessity exception. However, because Rule 81 is a rule of procedure, in appropriate, and likely unusual, circumstances where a party wishes to introduce hearsay evidence that party should, at least, put forward evidence to support the arguments of reliability and necessity.

(ii) Was the visa officer's assessment in accordance with the Regulations?

[17]            The applicable sections of the Regulations are as follows:

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; 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; [...] 8(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. [...] 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 (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. [underlining added]		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) 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; [...] 8(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. [...] 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) 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. [Le souligné est de moi.]

[18]            The visa officer assessed Ms. Turcinovica as a self-employed person pursuant to the definition of a self-employed person and also pursuant to paragraph 8(1)(b) and subsection 8(4) of the Regulations.

[19]            I can find no error in the visa officer's consideration of the factors listed in Column I of Schedule I of the Regulations, and no such error was alleged.

[20]            However, in considering the discretion conferred by subsection 8(4) of the Regulations to award 30 units of assessment if satisfied that the applicant would "be able to become successfully established in his occupation or business in Canada" [underlining added] the visa officer's analysis was confined to consideration of whether Ms. Turcinovica met the definition of the self-employed person.

[21]            The visa officer concluded that Ms. Turcinovica did not meet the definition on the basis that she would "in effect' be an employee of a company working on commission. While the visa officer understood Ms. Turcinovica's intent to be to work on commission for a number of companies selling investment vehicles, the visa officer refused the application on the basis that "[y]ou do not have any intention of establishing or purchasing a business, but rather you intend to work as an employee of an insurance company and work on a commission basis".

[22]            In so concluding, the visa officer erred, in my view, by concluding that an insurance or investment salesperson remunerated on a commission basis can never be a self-employed immigrant.

[23]            With respect, the proper inquiry is whether an applicant has the ability to establish himself or herself in his or her occupation or business in Canada. Inherent in the requirements of subsection 8(4) of the Act and the definition of self-employed person, when read together, is that the successful establishment of the applicant in his or her occupation or business will create an employment opportunity for the applicant and make a significant contribution to the economy and the cultural or artistic life of Canada.

[24]            Many self-employed salespersons are paid on a commission basis. The visa officer appears to have put too much emphasis on the fact that Ms. Turcinovica was to be remunerated on a commission basis and appears to have concluded that those selling products for one or more companies on commission could never be self-employed.

[25]            The fact that Ms. Turcinovica indicated an intent to at first work for one company so as to learn the system before becoming an agent who worked for a number of customers was not fatal to her application. See: Margarogyan v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm. L.R. (2d) 53 at para. 6 and Kim Mui v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 59.

[26]            Similarly, previous self-employment is not a prerequisite to admission as a self-employed person.

[27]            The visa officer also concluded that the proposed business would not constitute a significant benefit to the Canadian economy. If a proper finding, this is determinative of the application for judicial review, notwithstanding the error discussed above. This is because Ms. Turcinovica, like all applicants, is obliged to meet both parts of the definition of a self-employed person.

[28]            The reason given by the visa officer for the conclusion that the business would not constitute a significant benefit was that if the earnings were similar to Ms. Turcinovica's earnings in the United States they would not constitute a significant benefit to the Canadian economy. The officer concluded that there was no indication that the earnings would be significantly higher.

[29]            Ms. Turcinovica argued that because of her knowledge of sales, products and accounting, and her fluency in English, Russian and Latvian, she would sell insurance and securities to individuals from those ethnic communities. Ms. Turcinovica stated that many of those potential clients did not possess sufficient command of English to venture into the areas in which she wished to specialize. This was said to constitute a significant benefit to the Canadian economy.

[30]            Ms. Turcinovica had the burden of adducing evidence which would reasonably satisfy the visa officer of her ability to establish a business in Canada which would constitute significant benefits to the Canadian economy. Ms. Turcinovica did not present any business plan or forecast to the visa officer and could not explain how she intended to triple her income in Canada.

[31]            In Chhibber v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1082, Teitelbaum J. noted that "significant" is defined as important or notable, and then looked to see if the business could be said to make any important or notable contribution to the economy of Canada.

[32]            It is not for me to exercise a fresh discretion as to whether the proposed business would make a significant contribution to the economy of Canada. In my view, on the evidence before the visa officer, her reasons for concluding it would not stand up to a somewhat probing examination. Hence, the officer's conclusion that the proposed business would not make a significant contribution to the Canadian economy cannot be said to be unreasonable.

(iii) The Exercise of Positive Discretion

[33]            Subsection 11(3) of the Regulations allows a visa officer to grant a visa to an applicant who has not obtained 70 units of assessment where the visa officer is of the opinion that there are "good reasons to conclude that the units of assessment awarded do not reflect the chances of the particular immigrant ... becoming successfully established in Canada".

[34]            It was argued on Ms. Turcinovica's behalf that there is no evidence that the visa officer considered subsection 11(3) of the Regulations as an option for approving Ms. Turcinovica's application. Therefore it was submitted that the visa officer failed to exercise her jurisdiction properly.

[35]            In my view, absent a request by an applicant, or facts that suggest some good reason why a unit of assessment determination would not properly reflect the chance of an applicant's successful establishment in Canada, a visa officer has no general duty to consider the exercise of positive discretion under subsection 11(3) of the Regulations. See: Lam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1239; Behzad Razavi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1388; Savvateev v. Canada (Minister of Citizenship and Immigration) (2000), 2 Imm. L.R. (3d) 207.

[36]            In the present case, Ms. Turcinovica was awarded 57 units of assessment, a number of units significantly below the 70 units generally required. I can find nothing in the facts which she put before the visa officer which required the officer to consider the exercise of positive discretion.

[37]            For these reasons, despite the thorough argument of counsel for Ms. Turcinovica, the application for judicial review will be dismissed. In that circumstance there is no need to consider the propriety of the allegation that the visa officer's supervisor committed a reviewable error by failing to intervene in what was described as a clearly improper decision.

[38]            Counsel posed no question for certification, and no question is certified.

ORDER

[39]            IT IS HEREBY ORDERED THAT:

The application for judicial review is dismissed.

"Eleanor R. Dawson"

                                                                                                           Judge