Date: 20100722
Docket: IMM-5670-09
Citation: 2010 FC 764
Ottawa, Ontario, July 22,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
HONG
WEI DING
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of the decision of
a visa officer at the Canadian Embassy in Beijing, China refusing the
Applicant’s application for permanent resident status as a member of the
self-employed person class.
[2]
The
application for judicial review shall be dismissed for the following reasons.
[3]
In
2006, the Applicant, Hong Wei Ding, made an application for a permanent
resident visa under the self-employed person class. His application was based
on his employment as president of a traditional Chinese medicine and massage
training centre. His expressed intention was to operate a Chinese therapeutic
massage clinic and training centre in Vancouver.
[4]
In
a letter dated August 31, 2009, the visa officer determines that the Applicant
does not qualify for a permanent resident visa in the self-employed person
class. The visa officer states that, based on a review of evidence in support
of the application, she is not satisfied that the Applicant falls within the
meaning of a self-employed person as he had not been self employed in cultural
activities in the five (5) years preceding his application.
[5]
Pursuant
to subsection 100(1) of the Immigration and Refugee Protection Regulations,
S.O.R./2002-227 (the Regulations), in order to apply under the prescribed class
of self-employed person, an individual must fall within the meaning of self-employed
person at subsection 88(1).
[6]
Subsection
88(1) of the Regulations defines a self-employed person as follows:
"self-employed person means a foreign
national who has relevant experience and has the intention and ability to be
self-employed in Canada and to make a significant contribution to
specified economic activities in Canada". Also at
subsection 88(1), in respect of a self-employed person, relevant experience
includes "in respect of cultural activities, two one-year periods of
experience in self-employment in cultural activities".
[7]
The
Applicant raises only one issue - that the visa officer erred by failing to
provide reasons as to why traditional Chinese medicine is not a cultural activity
under the Regulations. Nonetheless, the Applicant’s arguments center on the
reasons why Chinese medicine should be included in the meaning of cultural
activity. Both of these issues will be addressed.
[8]
The
Court will not intervene as long as the visa officer’s decision is reasonable
and falls within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 47; Kim v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1291, [2008] F.C.J. No. 1644 at paragraph
18).
[9]
Turning
first to the determination that the Applicant’s self-employment experience does
not fall within the prescribed meaning of relevant experience under the Regulations,
I am satisfied that the visa officer did not err and that traditional Chinese
medicine is not a cultural activity contemplated under subsection 88(1).
[10]
The
Applicant argues that his business in traditional Chinese medicine is a cultural
activity because Chinese medicine cannot be separated from Chinese culture and
healing is an art. In my view, there is no support for such an interpretation. Even
though cultural activities are not explicitly defined in the Regulations, the operations
manual OP 8 Entrepreneurs and Self-Employed (OP 8) set out examples of
cultural activities. Section 11.3 of OP 8, gives examples of self-employment
that are traditionally captured in the meaning of self-employed experience in
cultural activities, those include music teachers, painters, illustrators, film
makers, freelance journalists, choreographers and set designers. Also included
are those with management experience in the world of arts and culture, such as
theatrical or musical directors and impresarios. Section 11.4 stipulates that it
is intended that the self-employed class enrich Canadian culture. It is clear
that cultural activities are meant to be those as ordinarily understood to be
part of the arts. There is no basis on which to conclude that experience in a Chinese
therapeutic massage clinic and training centre falls within the meaning of cultural
activities under the Regulations.
[11]
The
Respondent highlights that under the previous version of the regulations, an
applicant under the self-employed category was required to show that he could
make an economic or a cultural contribution (Immigration
Regulations, 1978, S.O.R.
/78-172 at s. 2.1; see the
decisions in Ying v. Canada (Minister of
Citizenship and Immigration) (1997), 41 Imm. L.R. (2d) 129; Yang v. Canada (Minister of
Employment and Immigration) (1989), 27 F.T.R. 74). That is no longer the
case under the current Regulations and the change was adopted in order to
ensure that only immigrants who have been employed in cultural activities would
be eligible within the class and that business immigrants with more generic
business abilities meet the requirements under the other classes (Regulatory
Impact Analysis Statement, C. Gaz. 2002. II at page 239). The Applicant’s
experience is clearly more in the nature of a business than a cultural activity
and the regulatory change was aimed at creating a clear separation between the
two.
[12]
In
order to be eligible for consideration under the self-employed person class, an
applicant must meet the regulatory definition – this includes having the
requisite relevant experience. In the case at bar, the Applicant does not meet
the definition and it was reasonable for the officer to refuse the application.
[13]
It
is not necessary to deal at length with the alleged error with regard to the
reasons. It suffices to say that, in light of the fact that the Applicant’s relevant
experience was clearly not contemplated under the regulatory scheme, no further
analysis was required and the reasons are sufficient and reasonable.
[14]
Even
though the Court is of the opinion that the application for judicial review
should be dismissed, it agrees with the applicant that an affidavit filed in
response to a judicial review application should not provide explanations or
elaborate on reasons that are not apparent in the decision or the CAIPS notes
from the Officer (Kalra
v. Canada (Minister of Citizenship and Immigration), 2003 FC 941, 29 Imm.
L.R. (3d) 208 at paragraph 15). Such is the case with paragraph 5 of Francesca
Imperato's affidavit. The Court did not rely on this paragraph to reach its
conclusion.
[15]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT ORDERS that the judicial review application be
dismissed. No question is certified.
“Michel
Beaudry”
Email this Content