Date: 20120522
Docket: IMM-871-11
Citation: 2012 FC 614
Ottawa, Ontario, May 22,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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IRINA GRISCENKO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Irina Griscenko, contests the refusal of her application for a
permanent resident visa in the self-employed person class by a Visa Officer
(the Officer) at the Canadian Embassy in Warsaw, Poland in a letter
dated January 13, 2011. The Officer found she did not meet the definition of a
“self-employed person” under subsection 88(1) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations).
[2]
For
the reasons set out below, the application for judicial review is dismissed.
I. Background
[3]
A
citizen of Latvia, the Applicant has resided in Canada since
September 28, 2010. She holds a temporary work permit and is employed as a
full-time Russian drama teacher at Discovery Academy in Toronto.
[4]
On
October 5, 2010, the Applicant completed an updated application for permanent
residence under the self-employed category. She based her application on ten
years experience related to Russian and Latvian drama choreography, stage
management, acting, directing and theatre education. She submitted that this
experience was world class and internationally recognized based on her
involvement with festivals and the receipt of various diplomas and acknowledgments.
[5]
Following
a preliminary review of her application, the Officer requested additional
information related to her intention and ability to make a significant
contribution to cultural life in Canada. More specifically,
there was no information as to her hours of work, teaching methods, number of
children per group or the arrangements with her employer to use school
facilities for classes and workshops.
[6]
In
response, the Applicant submitted, among other things, a letter from Discovery Academy indicating
that she would be able to use facilities to offer lessons during non-business
hours with an arrangement to split fees.
[7]
The
Officer nonetheless concluded that she did not meet the definition of a
“self-employed person” under the Regulations because she was employed by
the Ventspils House of Arts, Latvia as a Russian drama teacher from 1993 to
2010 and in Canada as a
full-time employee of the Discovery Academy.
[8]
In
addition, her experience organising theatrical events and cultural festivals in
Latvia was not
considered to be at the world-class level as this refers to “persons who are
known internationally and who performed at the highest level of their
discipline.” By contrast, the Applicant’s experience was seen as having only
local importance. The Officer’s Computer Assisted Immigration Processing
System (CAIPS) notes reference a Google search that showed one entry on the
Applicant’s name in a Toronto discussion forum.
II. Issue
[9]
The
sole issue before the Court is as follows:
Did
the Officer err in refusing permanent residence to the Applicant as a member of
the self-employed person class?
III. Standard
of Review
[10]
The
Officer’s decision on an application for permanent residence as a member of the
self-employed class is reviewed according to reasonableness (Kim v Canada (Minister of
Citizenship and Immigration), 2008 FC 1291, [2008] FCJ no 1644 at para
18; Ding v Canada (Minister of
Citizenship and Immigration), 2010 FC 764, [2010] FCJ no 934 at para
8).
[11]
Applying
that standard, the Court should only intervene where the Officer’s decision does
not demonstrate justification, transparency and intelligibility or falls
outside the range of acceptable outcomes (Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47). It is not up to a reviewing court to
substitute its own view of a preferable outcome (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009]
SCJ no 12 at para 59).
IV. Analysis
[12]
Under
subsection 100(2) of the Regulations, a foreign national applying as a
member of the self-employed class must meet the definition in subsection 88(1).
A “self-employed person” is a foreign national with “relevant experience” and
the intention and ability to be self employed and make a significant
contribution to specified economic activities in Canada. According
to the Regulations, relevant experience consists of the following:
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“relevant
experience”, in respect of
(a)
a self-employed person, other than a self-employed person selected by a
province, means a minimum of two years of experience, during the period
beginning five years before the date of application for a permanent resident
visa and ending on the day a determination is made in respect of the
application, consisting of
(i)
in respect of cultural activities,
(A)
two one-year periods of experience in self-employment in cultural activities,
(B)
two one-year periods of experience in participation at a world class level in
cultural activities, or
(C)
a combination of a one-year period of experience described in clause (A) and
a one-year period of experience described in clause (B),
[…]
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«
expérience utile »
a) S’agissant d’un travailleur autonome
autre qu’un travailleur autonome sélectionné par une province, s’entend de
l’expérience d’une durée d’au moins deux ans au cours de la période
commençant cinq ans avant la date où la demande de visa de résident permanent
est faite et prenant fin à la date où il est statué sur celle-ci, composée :
(i) relativement à des activités
culturelles :
(A) soit de deux périodes d’un an d’expérience
dans un travail autonome relatif à des activités culturelles,
(B) soit de deux périodes d’un an
d’expérience dans la participation à des activités culturelles à l’échelle
internationale,
(C) soit d’un an d’expérience au titre
de la division (A) et d’un an d’expérience au titre de la division (B),
[…]
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[13]
The
Applicant contends that the Officer erred by faulting her for not having
previous self-employment experience. She demonstrated her ability to use the
school where she was working, earn an hourly amount and previous experience
employed in the field. Relying on prior jurisprudence relevant to the
definition of self-employed, the Applicant suggests that the Officer placed
“undue emphasis” on her lack of experience as a self-employed drama teacher
(see for example Yang v Canada (Minister of Employment and Immigration)
(1989), 27 FTR 74, [1989] FCJ no 218; Grube v Canada (Minister of
Citizenship and Immigration) (1996), 118 FTR 163, [1996] FCJ no 1089 at
para 25; Leung v Canada (Minister of Citizenship and Immigration), 2001
FCT 1293, [2001] FCJ no 1789 at paras 10-11).
[14]
The
Respondent maintains that the Officer considered the totality of the evidence,
noting that the Applicant gave no information concerning the anticipated number
of students she would attract or the number required to make the business
profitable. It is suggested that the Applicant’s situation resembles that of Kim,
above, where Justice Michel Beaudry upheld a decision of an officer concluding
that the applicant had not provided a sufficient business plan.
[15]
While
I acknowledge that the Applicant’s business plan was somewhat more developed
than that in Kim, above; it remained reasonably open to the Officer to
comment on her experience as a full-time employee as opposed to an individual
who is self-employed. This reflected not only the evidence before the Officer
but also the definition of “relevant experience” as in the current Regulations.
[16]
Moreover,
this finding cannot be viewed in isolation. The Officer also took issue with
the Applicant’s lack of experience at a “world-class level” because it was of
local importance.
[17]
The
Applicant asserts that there is nothing in the definition of relevant
experience or related policy materials that distinguishes “world-class” from
international recognition as the Officer implied. She participated in various
international festivals and her name can be found in similar Google searches in
the Russian and Latvian languages.
[18]
However,
I see nothing in the Officer’s interpretation that lacks justification,
transparency and intelligibility. I accept the Respondent’s submission that
the term “world-class level” would logically imply some comparison between
those recognized as world leaders in a given discipline in relation to the
Applicant. While she may have experience that crosses borders or results in
local recognition, it does not necessarily follow that this constitutes
performance at a “world-class level” as required by the Regulations. The
Officer is entitled to weigh the evidence in this manner.
V. Conclusion
[19]
The
Officer reasonably concluded that the Applicant did not meet the definition of
a self-employed person so as to qualify for permanent resident status.
[20]
Accordingly,
the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
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