Date: 19990729
Docket: IMM-3986-98
BETWEEN:
HONG-YANG YAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.
[1] The applicant Hong-Yang Yao is a resident of China. She has a university degree in business management and has written six books on business and economics from which she has earned significant income in China. She applied to come to Canada to work as a self-employed writer. Her application to immigrate to Canada was denied by a visa officer in Hong Kong. Ms. Yao seeks judicial review of that decision.
[2] The basis of the visa officer's decision was that Ms. Yao did not meet the definition of "self-employed person" in the Immigration Act , which reads as follows:
| ... 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 case law establishes that Ms. Yao's application cannot be approved unless the visa officer is satisfied that she meets this definition: Pourkazemi v. Minister of Citizenship and Immigration, [1998] F.C.J. No. 1665 (QL) (F.C.T.D.) and Oh v. Minister of Citizenship and Immigration, [1999] F.C.J. No. 435 (QL) (F.C.T.D.).
[4] In the context of Ms. Yao"s application, the definition of "self-employed person" poses three questions, each of which must be answered in the affirmative:
| (1) Does Ms. Yao have the intention to establish a business in Canada that will create an employment opportunity for herself? |
| (2) Does Ms. Yao have the ability to establish such a business? |
| (3) Will Ms. Yao"s business, if it is established, make a significant contribution to the economy or the cultural or artistic life of Canada? |
[5] In this case, the answer to the first question is yes, because Ms. Yao"s intention to establish a business is the basis of her application. The visa officer concluded that the answer to the other two questions is no. It is argued for Ms. Yao that the visa officer erred in dealing with the second and third questions.
Ms. Yao"s ability to establish herself as a self-employed writer in Canada
[6] The record indicates that Ms. Yao has a proven ability to write books on her chosen subjects in business and economics, and that she has earned substantial sums in China from her work. She accomplished that while she was also working full time in one or more salaried positions. Her books have been published and sold in China through an agent, who makes the decisions about what will be published and attends to the selling of the books and all tax and other business matters.
[7] On the question of whether Ms. Yao has the ability to be a self-employed writer in Canada, the visa officer said this:
| You have never had the opportunity to develop the abilities necessary to be self employed in Canada. Your claimed experience as a "self-employed" person from 1987, is limited to the writing of six books while maintaining either one full time or two part time salaried positions with companies in Shanxi. You stated at interview that your agent decides what should be published and pays you an after tax amount for each book you write. Your limited role in the publishing of said books has not allowed you the opportunity to develop the skills necessary to create employment for yourself in Canada. Moreover, I am not satisfied that the research you have undertaken in terms of the market in which you plan to establish your business is sufficient to overcome your lack of ability. |
[8] Counsel for Ms. Yao and counsel for the Minister suggest different interpretations for this statement. Counsel for Ms. Yao says the visa officer was deprecating Ms. Yao"s undeniable accomplishments, and argues that the visa officer"s failure to appreciate the evidence led her to a perverse conclusion. Counsel for the Minister says that the visa officer"s statement, quoted above, simply reflects the fact that the record contains no evidence as to whether Ms. Yao has or has sought knowledge of the publishing business or the marketing of books in Canada, or where that information might be obtained, or how to obtain in Canada the services that her agent provides for her in China.
[9] With respect to the alleged factual errors, counsel for Ms. Yao suggests that the visa officer had the incorrect impression that Ms. Yao was intending to establish an business with ten staff, and may have concluded on that basis that Ms. Yao was intended to establish a publishing enterprise rather than a writing enterprise. Ms. Yao in her affidavit denies that she said anything to the visa officer about ten staff. She claims that her application is based on an intention to establish a business only for her own employment.
[10] In this respect there is a direct conflict in the affidavit evidence submitted in the application for judicial review. The visa officer claims in her affidavit that Ms. Yao said she was aiming for a business with ten staff. The visa officer also claims that she knew that Ms. Yao was intending to be a writer, not a publisher.
[11] The affidavit of the visa officer is supported by notes she took at the time of the interview. For that reason I accept it over the evidence of Ms. Yao on the point about the ten staff. I recognize the possibility of a misunderstanding due to an interpretation error, but I have no basis for concluding that such an error was made. I conclude that there was no factual error on the part of the visa officer with respect to what she was told about the size or nature of Ms. Yao"s proposed business.
[12] I agree with counsel for Ms. Yao that there are flaws in the reasoning as expressed in the visa officer"s statement. It is illogical to reach a negative assessment of Ms. Yao"s ability to be a self-employed writer in Canada on the basis that in China she has been employed in other positions while she wrote her books, and that her agent takes care of publishing and business matters for her in China. No doubt many self-employed writers in Canada are also employees, and use agents to publish and market their books.
[13] I hesitate to accept the interpretation of the visa officer's decision suggested by counsel for Ms. Yao. I am constrained by what the visa officer said. On the other hand, it seems to me that it is the decision itself that is under review, not merely the stated reasons. I cannot ignore the absence of evidence in the record relating specifically to Ms. Yao"s prospects as a writer in Canada : Liu v. Minister of Citizenship & Immigration, [1998] F.C.J. No. 195 (QL) (F.C.T.D.).
[14] Ms. Yao had the burden of adducing evidence that would satisfy the visa officer of her ability to establish a writing business in Canada. Evidence of Ms. Yao"s success in China, without more, is not capable of proving that she could succeed in Canada as well. The record as a whole justifies the visa officer"s negative conclusion on the second question posed by the definition of "self-employed person in Canada." On that question, I find no error that justifies the intervention of the Court.
Potential contribution to Canada if Ms. Yao were established as a self-employed writer
[15] The third question posed by the definition of "self-employed person" is whether, if Ms. Yao were to establish herself as a self-employed writer in Canada, she would make a significant contribution to the economy or the cultural or artistic life of Canada. A potential contribution to any of the three would be sufficient to permit a positive answer to the third question. In this regard the visa officer said this:
| I have found no evidence of a potential artistic and cultural contribution from your planned role as an economic writer. In regard to a contribution to the economy, you were unable to satisfy me that your business would make a specific contribution to your area of destination largely because of the fact that you had undertaken marginal research as to the market for your skills in Canada. |
[16] Counsel for Ms. Yao argued that in assessing the potential contribution of Ms. Yao"s proposed work in Canada, the visa officer misled herself by giving undue weight to the fact that Ms. Yao would be writing in Chinese rather than English or French. She argues that the visa officer wrongly disregarded the size and prominence of the Chinese speaking community in Canada, particularly in Toronto, which was Ms. Yao"s intended destination. The visa officer in her affidavit denies this interpretation of her decision. She says that her questions about Ms. Yao"s proficiency in writing in English or French was intended to elicit information about Ms. Yao"s knowledge of the market in Canada for her work.
[17] I find no fault with the visa officer"s second sentence as quoted above, given the absence of evidence as to Ms. Yao"s prospects for self-employment as a writer in Canada. However, I agree with counsel for Ms. Yao that the first sentence indicates a perverse conclusion. Given the substantial Chinese speaking community in Canada and the evidence as to Ms. Yao"s successful writing career in China, it defies logic to conclude that there is no evidence that she has the potential to make a cultural contribution in Canada. With respect to the third question, I conclude that the visa officer erred.
Conclusion
[18] Ms. Yao is entitled to succeed in this application only if I conclude that the visa officer erred with respect to both the second and third questions posed by the definition of "self-employed person." As I found no error with respect to the second question, this application must be dismissed.
Costs
[19] Both parties sought costs. I find no basis for disregarding the normal rule that costs follow the event. The Minister is awarded costs, which I fix at $1,000.
Certified question
[20] I will defer the issuance of the order to permit submissions with respect to a certified question. If counsel for Ms. Yao wishes to make a submission, it should be served and filed on or before August 11, 1999. Any reply by counsel for the Minister should be served and filed on or before August 18, 1999.
"Karen R. Sharlow"
Judge
Winnipeg, Manitoba
July 29, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3986-98
| STYLE OF CAUSE: Hong-Yang Yao v. The Minister of Citizenship and Immigration |
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: July 27, 1999
REASONS FOR ORDER
OF THE COURT: The Honourable Madame Justice Sharlow
DATED: July 29, 1999
APPEARANCES
Mira Thow for the Applicant
Tracey Harwood-Jones
Department of Justice
Wpg, MB for the Respondent
SOLICITORS OF RECORD
Zaifman Associates
5th Floor, 191 Lombard Avenue
Winnipeg, Manitoba
R3B 0X1
for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent