Date: 20081120
Docket: IMM-5255-07
Citation:
2008 FC 1291
Ottawa, Ontario, November 20, 2008
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
JA
OK KIM
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision dated
October 15, 2007, by an immigration officer (the officer) at the Canadian
Embassy in Korea, determining that the applicant did not meet the requirements
for immigration to Canada as a permanent resident under the Self‑employed
Person Class, pursuant to the Act and the Immigration and Refugee Protection
Regulations, S.O.R./2002-227.
I. Issue
[2]
The
only issue in this case is whether the immigration officer erred by refusing
the application for permanent residence.
[3]
For
the following reasons, the application for judicial review will be dismissed.
II. Facts
[4]
The
applicant is a well-known Korean actress who has been working in that
profession since 1968. She submitted an application for permanent
residence (APR) in the Self-employed Person Class on September 5, 2005.
[5]
In
support of her APR, she presented a business plan indicating that she intended
to provide consulting services to those interested in her field, organize
plays, perform at cultural events and export Canadian films and plays to Korea.
[6]
At
the interview, the applicant said that she planned to train actors and singers,
contribute to cultural exchanges between Korea and Canada and
establish a small theatre group. She also said that she wanted to teach
aspiring second-generation Korean immigrant actors and give them advice about
their skills and prospects for the future. She claimed that she would establish
a drama school and that she would open a small office to teach.
[7]
The
applicant’s son, Young Hawn Oh, currently attends secondary school and lives in
Vancouver.
[8]
The
immigration officer met the applicant for an interview on September 12, 2007,
and issued a decision on October 15, 2007.
III. Impugned
decision
[9]
The
officer determined that the applicant did not fall within the definition of a
“self‑employed person” as set out in subsection 88(1) of the Regulations.
Subsection 100(2) of the Regulations provides that if a foreign
national who applies as a member of the self-employed persons class is not a
self-employed person within the meaning of subsection 88(1), the application must
be refused.
[10]
The
officer stated that, although the applicant said she was planning to train
actors and singers, contribute to cultural exchanges between Korea and Canada and
establish a small theatre group, she had never been involved in the marketing,
management or operation of a business or in professional teaching. The officer noted
that the applicant had only worked as an actress and singer.
[11]
In
addition, the officer took into consideration that, although the applicant said
she wanted to collaborate with other people to set up and operate her drama
school, she had not made any arrangements at that point to obtain the
collaboration of business people.
[12]
Last,
the officer noted that the applicant was unable to communicate in English,
which was an obstacle to her ability to be a self-employed person in Canada.
IV. Relevant
legislation
[13]
The
relevant legislation can be found in Schedule A at the end of these reasons.
V. Preliminary
issue
[14]
The
respondent raises a preliminary issue regarding the evidence provided by the
applicant in support of her application for judicial review. The respondent
notes that exhibit D-3 submitted in support of the applicant’s affidavit is
fresh evidence that was not before the immigration officer and cannot be
considered by the Court, since the judicial review of a decision must be based only
on the evidence that was before the decision-maker (Samsonov v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1158, 157 A.C.W.S. (3d) 822). In
addition, the exhibits in support of the applicant’s affidavit are not sworn, contrary
to the requirements of subsection 80(3) of the Federal Courts Rules, S.O.R./98-116.
[15]
It
is trite law that judicial review of a decision should proceed only on the
basis of the evidence before the administrative decision-maker (Gallardo v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 45, 230 F.T.R. 110). Exhibit D-3
submitted in support of the applicant’s affidavit is dated prior to the officer’s
decision. The Court will not consider this fresh evidence.
[16]
As
for the two other exhibits (D-1 and D-2) that were not sworn, these documents are
in the record that the immigration officer provided, and, therefore, the issue
of the documents not being sworn is no longer relevant.
VI. Analysis
A. Standard of review
[17]
The
Supreme Court of Canada recently stated in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, that there are now only two standards of
review: correctness and reasonableness.
[18]
In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also
concerned with whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir,
at paragraph 47). The Court must not intervene as long as the officer’s
decision is reasonable, and the Court cannot substitute its own opinion on the
sole ground that it could have come to a different conclusion. In my view, the
appropriate standard of review for decisions by immigration officers is
reasonableness.
Did
the immigration officer err by refusing the applicant’s application for
permanent residence under the Self‑employed Person Class?
[19]
In
making her decision under subsection 88(1) of the Regulations, the officer had
to verify whether the applicant had experience, whether she had the
intention and ability to be self-employed and whether she could make a
significant contribution to a specified economic activity in Canada, in this
case, a cultural activity.
[20]
The
applicant essentially alleges that the officer erred in assessing the facts and
that she disregarded part of the evidence that was before her by finding that the
applicant had not demonstrated that she could create her own employment in
Canada and make a significant contribution to economic activities.
[21]
The
applicant submits that the officer made a series of errors in her decision.
First, the officer did not take into account the diversity and scope of the
applicant’s professional achievements. Second, the immigration officer only considered
one aspect of the applicant’s business plan, i.e., “Establishing an acting
school and/or make a theatre group”. Third, the officer put undue emphasis on
the [translation] “management
experience” criterion and disregarded the applicant’s management experience.
Fourth, the officer prematurely required co-operation agreements with third
parties to bring her project to fruition. Last, the officer did not consider
that the applicant could benefit from the fact that her son, who lives in Vancouver, knows
English.
[22]
The
respondent points out that the applicant did not submit an APR under the
Self-employed Person Class to come and pursue her profession as an actress in Canada. The
business plan that the applicant submitted in support of her APR as well as her
interview with the immigration officer showed that she primarily intended to
set up a drama school.
[23]
At
her interview, the applicant acknowledged that she had no professional teaching
experience other than providing informal advice to junior actors who worked
with her. In addition, the officer noted that the applicant had never been
involved in the marketing, management or operation of a business or in
professional teaching.
[24]
The
respondent argues that the applicant cannot criticize the officer for taking
into account the fact that she had no management experience. This was an
important factor since the applicant was planning to start up her own business.
The officer did not put undue emphasis on this factor but properly considered
it, given that the definition of self-employed person encompasses the notion of
experience.
[25]
In
addition to the fact that the applicant had no experience in professional
teaching and that she had never owned or managed a business, the officer noted
that the applicant stated at her interview that she would collaborate with
people in her field because it would be difficult for her to be a self-employed
person in Canada; however, she had not begun any discussions and/or made any arrangements
to obtain such collaboration. According to the respondent, the lack of a
co-operation agreement was a relevant factor in assessing the seriousness of
the applicant’s intentions as well as her ability to turn her projects into
reality and to create her own employment.
[26]
Nor
can the applicant fault the officer for considering her language proficiency.
There is no evidence that the applicant provided information to the officer
about her son’s knowledge of English and the assistance that he could give her.
In fact, the applicant’s total lack of proficiency in English was a relevant consideration
because it would affect her ability to create her own employment in Canada.
[27]
In
Ying v. Canada (Minister of Citizenship and Immigration), (1997) 74
A.C.W.S. (3d) 1055, 41 Imm. L.R. (2d) 129 (F.C.T.D.), in referring to
previous cases, the Court 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.
In Yang v. Canada (Minister of
Employment and Immigration), (1989) 27 F.T.R. 74, 14 A.C.W.S. (3d) 363 (F.C.T.D.),
the Court stated the following:
. . . The 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 he
teach? third, can he 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. His 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.
[28]
In
this case, I am satisfied that the applicant is an accomplished actress who meets
the first criterion in Ying.
[29]
On
the other hand, in my view, the reasons given by the immigration officer for concluding
that the applicant would not be able to successfully operate her proposed
business (a drama school) are justified by the evidence that was before the
officer. The applicant’s business plan was not sufficiently specific or
concrete. The fact that the applicant had not conducted prior research in Canada coupled with
the fact that she did not speak either of the two official languages convinced the
officer that the applicant did not meet the criteria for the definition of
“self-employed person”.
[30]
This
decision is reasonable. The intervention of the Court is not necessary.
[31]
The
parties did not propose the certification of a serious question of general
importance. The docket does not contain any.
JUDGMENT
THE COURT ORDERS
that the application for judicial review is
dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Mary
Jo Egan, LLB
Schedule A
Relevant Legislation
Immigration
and Refugee Protection Regulations, S.O.R./2002-227 (Regulations), at subsection 88(1): definition
of self-employed person:
|
“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.
|
« travailleur
autonome »
Étranger
qui a l’expérience utile et qui a l’intention et est en mesure de créer son
propre emploi au Canada et de contribuer de manière importante à des
activités économiques déterminées au Canada.
|
Subsection
88(1) of the Regulations: definition of relevant experience:
|
“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),
(ii)
in respect of athletics,
(A)
two one-year periods of experience in self-employment in athletics,
(B)
two one-year periods of experience in participation at a world class level in
athletics, 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), and
(iii)
in respect of the purchase and management of a farm, two one-year periods of
experience in the management of a farm; and
(b)
a self-employed person selected by a province, has the meaning provided by
the laws of the province.
|
« 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),
(ii)
relativement à des activités sportives:
(A)
soit de deux périodes d’un an d’expérience dans un travail autonome relatif à
des activités sportives,
(B)
soit de deux périodes d’un an d’expérience dans la participation à des
activités sportives 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),
(iii)
relativement à l’achat et à la gestion d’une ferme, de deux périodes d’un an
d’expérience dans la gestion d’une ferme;
b) s’agissant d’un
travailleur autonome sélectionné par une province, s’entend de l’expérience
évaluée conformément au droit provincial.
|
Subsection
88(1) of the Regulations: definition of specified economic activities:
|
“specified
economic activities”, in respect of
(a)
a self-employed person, other than a self-employed person selected by a
province, means cultural activities, athletics or the purchase and management
of a farm; and
(b)
a self-employed person selected by a province, has the meaning provided by
the laws of the province.
|
« activités
économiques déterminées »
a) S’agissant d’un
travailleur autonome, autre qu’un travailleur autonome sélectionné par une
province, s’entend, d’une part, des activités culturelles et sportives et,
d’autre part, de l’achat et de la gestion d’une ferme;
b) s’agissant d’un
travailleur autonome sélectionné par une province, s’entend au sens du droit
provincial.
|
Subsection 100 of the Regulations:
|
100. (1) For the purposes of subsection
12(2) of the Act, the self-employed persons class is hereby prescribed as a
class of persons who may become permanent residents on the basis of their
ability to become economically established in Canada and who are
self-employed persons within the meaning of subsection 88(1).
(2) If a foreign national who applies
as a member of the self-employed persons class is not a self-employed person
within the meaning of subsection 88(1), the application shall be refused and
no further assessment is required.
|
100. (1)
Pour l’application du paragraphe 12(2) de la Loi, la catégorie des
travailleurs autonomes est une catégorie réglementaire de personnes qui
peuvent devenir résidents permanents du fait de leur capacité à réussir leur
établissement économique au Canada et qui sont des travailleurs autonomes au
sens du paragraphe 88(1).
(2) Si le demandeur au titre de la
catégorie des travailleurs autonomes n’est pas un travailleur autonome au
sens du paragraphe 88(1), l’agent met fin à l’examen de la demande et la
rejette.
|
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