Margarosyan v. Canada (Citizenship and Immigration), docket IMM-331-96

                                 IMM-331-96

BETWEEN:

     TALAR MARGAROSYAN

                                 Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                 Respondent

     REASONS FOR ORDER

GIBSON J.:

     These reasons arise out of an application for judicial review of a decision of a visa officer wherein the visa officer refused the Applicant's application for permanent residence in Canada. The decision is dated the 13th day of December, 1995.

     The Applicant is a citizen of Turkey. She applied for an immigrant visa to Canada under the self-employed guidelines. At the heart of those guidelines is the definition "self-employed person" in subsection 2(1) of the Immigration Regulations, 1978¹ which reads 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 Applicant has received extensive training as a classical ballet dancer. At the time of her application for permission to come to Canada, she was teaching classical ballet in Istanbul, Turkey at the Istanbul University National Conservatoire, and was the principal dancer in the Cagdas Bale Groupe.

     In the letter conveying the decision here under review, the visa officer wrote:

In my opinion, you do not meet this definition [the definition "self-employed person"] because you do not have the intention to establish your own school or dance company upon your arrival in Canada. You indicated clearly at the interview that your intention, if you go to Canada, is to first work for existing schools or companies and perhaps later on, start your own business. In addition, you do not appear to possess managerial experience in setting up and administering a private business.

[underlining added by me for emphasis]

The visa officer went on to consider the Applicant's application as an independent applicant. He determined the then current occupational demand for ballet teachers in Canada to be zero. He was therefore obliged to reject the applicant under this category. Finally, he determined that there were insufficient humanitarian and compassionate grounds to warrant special consideration.

     In her affidavit, the Applicant attested as follows:

...

7.      I believe that upon my arrival in Canada I would be able to teach ballet to many different schools as the need for skilled classical ballet teachers is very high as outlined in the letters [found attached to her affidavit]. Through teaching at different schools I would be able to discover how Canadian ballet schools operate and thus have the ability and experience to open my own school. I believe that my qualifications and experience would enable me to open my own school and teach ballet.

...

     In his affidavit that was before me, the visa officer attested in part as follows:

...

4.      At the beginning of the interview, [the interview conducted by the visa officer with the Applicant and her husband] the Applicant showed her reference letters. She had many from dance companies and schools in different countries. We then spoke of her education and of her work experience. It seemed to me that she was a qualified and experienced ballet dancer and teacher. She was teaching in the conservatoire, however, she has never operated her own school, and did not have any experience in the management of a dance school.

5.      When I asked the Applicant if she had inquired about the steps and the ways to open a dance school in Canada, she said she had not, but again she showed me letters from Canada which mention that the writers were prepared to help her find employment.

6.      At this point, as I was not sure that the Applicant understood, I asked Tulay Nergiz, a locally-engaged employee, to assist as interpreter. Again we repeated the definition of the self-employed category. The Applicant's spouse said that the consultant advised them to apply as self-employed. He stated further that, of course, like every one, they would like to establish their own business one day, but they have first to work for others in order to raise money. Accordingly, I very clearly asked if their plan was, when they go to Canada, to find work for the Applicant in dance companies or schools. The Applicant and her spouse replied in the affirmative.

...

     In Ho v. Canada (Minister of Employment and Immigration),² a case with significant features in common with this matter, Associate Chief Justice Jerome wrote:

It is important to bear in mind that Parliament's intention in enacting the Immigration Act is to define Canada's immigration policy both to Canadians and to those who wish to come here from abroad. Such a policy cannot exist without complex regulations, a good many of which appear to be restrictive in nature, but the policy should always be interpreted in positive terms. The purpose of the statute is to permit immigration, not prevent it, and it is the corresponding obligation of immigration officers to provide a thorough and fair assessment in compliance with the terms and the spirit of the legislation.

Associate Chief Justice Jerome repeated the paragraph just quoted in Yang v. Canada (Minister of Employment and Immigration),³ heard by him the same day as Ho, and also a case with a factual background similar to that in this matter.

     In the paragraph quoted above from the visa officer's decision letter, I have highlighted the words "...upon your arrival in Canada." It is to be noted that those words do not appear in the definition "self-employed person" also quoted earlier in these reasons. If the Governor-in-Council had intended that the underlined words be read into the definition "self-employed person", it would have been an easy matter to insert the words. The Governor-in-Council not having done so, against the "...obligation of immigration officers to provide a thorough and fair assessment in compliance with the terms and the spirit of the [Immigration Act]", propounded by Associate Chief Justice Jerome, I conclude that it simply was not open to read in those words on the facts of this matter. So long as the Applicant's intent was bona fide, I conclude that it was not necessary that her intent to establish a business in Canada relate to immediately upon her arrival in Canada or within any finite period following arrival in Canada. The visa officer did not question the bona fides of the Applicant's intent. In the result, I conclude that the visa officer erred in law on the face of his decision.

     Two subsidiary grounds for the visa officer's decision appear from the quotation above. The visa officer implies that the Applicant's intention to establish her own business is speculative when he writes "... and perhaps later on, start your own business." I find nothing in the material that was before the visa officer to support a conclusion that the applicant's intent was speculative. While the time at which the intent to establish her own business would be realized was undetermined, the material that was before the visa officer, and therefore before me, satisfies me that the Applicant's intention was firm.

     Finally, the visa officer expressed concern that the Applicant did "...not appear to possess managerial experience in setting up and administering a private business". In Grube v. Canada (Minister of Citizenship and Immigration),⁴ Mr. Justice MacKay dealt with an application for judicial review of a visa officer decision respecting an individual who sought to come to Canada as a self-employed ballet coach/choreographer. He wrote:

In my view, in the case before me the visa officer placed undue emphasis on the lack of past business experience as a self-employed person when assessing the application[s] of... Ms. Grube... . That experience, as a self-employed person, may well be a factor to be favourably considered when determining whether an applicant is likely to become successfully established as a self-employed person in Canada, but it is not the sole criterion to be considered, and it must be considered in light of the occupation sought to be undertaken in Canada. It may be of greater significance in relation to certain occupation than to others.

In the circumstances here, the visa officer stated... that he would not grant favourable consideration to Ms. Grube's ... application for permanent residence unless documentation related to past business records and to past experience as a self-employed person was provided. In my view, those statements indicate that the visa officer placed undue emphasis on past experience. Indeed, the lack of past experience was determinative of the decision..., as the visa officer indicated that it was only through adducing such evidence that [Ms. Grube] could succeed. As in Ho, this undue emphasis on past experience made it virtually impossible for the applicant[s] to succeed in [her] application[s].

I am satisfied that the same can be said on the facts of this matter. The Applicant's qualifications and experience as a dancer and as a teacher of classical ballet were not in question. She adduced evidence before the visa officer from Canadian sources indicating "continuing need for persons with training such as [hers]" and that there are in Canada "...many opportunities for teaching professionals with [her] level of expertise." I am prepared to assume that the level of business experience required to operate a ballet school in Canada would be substantially easier to acquire through observation or through employment of others than would be acquisition of the artistic and teaching skills possessed by the Applicant.

     For the foregoing reasons, I am satisfied that the visa officer erred in a reviewable manner in rejecting the Applicant's application in the self-employed category. In the result, this application for judicial review will be allowed, the decision of the visa officer will be set aside and the matter will be referred back to the Respondent for reconsideration and redetermination by a different visa officer.

     Neither counsel recommended certification of a question. No question will be certified.

             _________________________________

                 Judge

Ottawa, Ontario

November 26, 1996

__________________

     ¹      SOR/78-172 (as amended)

     ²      (1989), 8 Imm. L.R. (2d) 38

     ³      (1989), 8 Imm. L.R.(2d) 48

     ⁴      14 August 1996, Court File: Imm-2484-95 (unreported)(F.C.T.D.)