Federal Court Decisions

IMM-1508-96

BETWEEN:

HUANG YING and GAO BAI NIAN

Applicants

- and -

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

JEROME A.C.J.:

     This application for judicial review of a decision by a visa officer, communicated to the applicants by letter dated February 15, 1996, came on for hearing before me at Toronto, Ontario, on June 10, 1997. At the close of oral argument, I took the matter under reserve and indicated that written reasons would follow.

     Ms. Huang is a musician. She plays the pipa and the zhong ruan, two traditional instruments, is a member of the "Nanjing Musical Singing Dance Troupe," has toured internationally, and has a number of recordings to her credit. Mr. Gao is an artist as well as a professor and administrator at the Nanjing Normal University. In 1995, they applied for permanent residence in Canada for themselves and their daughter.

     They sought admission to Canada as members of the "self-employed" category. They were granted an interview with a visa officer in Beijing on January 25, 1996. The visa officer questioned them about their business plans in Canada but determined that they did not meet the criteria established by the Immigration Regulations, 1978 (the "Regulations"). The applicants were made aware of this determination at the interview and were given an opportunity to refute it. In mid-February a letter was prepared which confirmed the visa officer's conclusion and was sent to the applicants, although there is no indication that it was received until sometime in March, 1996.

     The applicants seek judicial review of this decision on the grounds that the visa officer breached the principles of procedural fairness, ignored or misinterpreted evidence before her, and misinterpreted the definition of a "self-employed person" found at subsection 2(1) of the Regulations. I am not satisfied that the first two grounds are justified. As noted, the visa officer gave the applicants an opportunity during their interview to provide her with additional information in order to disabuse her of her finding that they should not be considered under the "self-employed" category of immigrants, and she based her decision on evidence found on the record. Thus, I cannot conclude that the visa officer deviated from the principles of procedural fairness or misinterpreted or ignored the evidence before her.

     Nor am I convinced that she misconstrued the definition of "self-employed person." Subsection 2(1) of the Regulations provides as follows:

"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.

The jurisprudence has found that the definition of a "self-employed person" has two parts: the intention and ability to establish or buy a business, and the likelihood of this business providing a significant contribution to Canada. With respect to the first branch, this Court found in Yang v. Canada (Minister of Employment & Immigration), a case which involved a musician seeking to come to Canada and become self-employed as a music teacher, that:

[t]he analysis appears to me to require consideration of three questions. First, is the applicant an accomplished musician (in which international recognition ought to be of great assistance)? second, can she teach? third, can she be self-employed as a teacher? It is obvious that the applicant was successful in the first two and by inference at least, partially successful in the third. Her only failure in respect to the third issue is the lack of actual experience as a self-employed teacher. By placing undue emphasis on the lack of experience as a self-employed teacher, the visa officer allowed that partial failure on the third issue to override success on the other two, an interpretation that made it almost impossible for this applicant to succeed. Accordingly, there has been a fundamental breach of the duty of fairness to this applicant which is sufficient to warrant the relief sought. (supra at 56)

Thus, procedural fairness requires that the visa officer address each of the three questions and that they be given equal weight in the determination of whether the applicant should qualify as a "self-employed person."

     The applicants' "Development Plan in Canada", found at page 26 of the record submitted by the Ministry of Citizenship and Immigration on May 30, 1996, states that they intend to, "give art shows and music concerts, so in this way we can make the cultural situation of the community more colorful [sic]." In rejecting their application, the visa officer explained that,

You are a musician, and your husband is an artist. You expressed an intention to support yourselves through two means - the sale of your husband's paintings, and traditional Chinese concerts that you intend to give. However, your main source of employment has always been through your orchestra. Although you occasionally give solo performances, it is always with the backing of, and arranged by, your orchestra. Other than giving occasional music lessons, you have not had any experience in self employment. Similarly, your husband's primary source of employment has been as a professor at the Nanjing Normal University. At your interview, he stated that his art has been state supported. He has not had experience in self employment. (Letter of February 15, 1996)

I am not satisfied that any reviewable errors were made by the visa officer in arriving at this conclusion.

     The three questions posed in Yang can be rephrased to suit the situation in the case at bar:

(1)      Is Ms. Huang an accomplished musician? Is Mr. Gao an accomplished artist?

(2)      Can Ms. Huang organize and lead a musical troupe? Can Mr. Gao establish a presence in Canada and sell his paintings?

(3)      Can Ms. Huang be self-employed as a leader of a musical troupe, and Mr. Gao as an artist and art dealer?

While the applicants satisfy the first question, it is not evident that either has any experience or training which would permit a positive response to the second question. As a result, it is impossible to evaluate their ability to be self-employed, and a negative response must be recorded for the third question. It is clear from my review of the record and the materials filed by both parties that the visa officer considered these issues when reviewing the present application for permanent residence, and that she did not misinterpret the definition of a "self-employed person."

     It is equally difficult to determine whether the applicants' contribution to Canadian cultural or artistic life might be "significant." Given that we cannot ascertain whether the applicants could establish and manage their intended businesses, we cannot begin to contemplate the significance of their contribution.

     For the reasons outlined above, this application for judicial review is dismissed. No order as to costs.

O T T A W A

October 15, 1997                      "James A. Jerome"                              A.C.J.