OLEKSANDR KOLYESNIKOV Applicant - v. -, 2003 FCT 369

Date: 20030327 Docket: IMM-3495-01 Neutral citation: 2003 FCT 369 Ottawa, Ontario, this 27th day of March, 2003 PRESENT: THE HONOURABLE MR. JUSTICE JOHN A.

O'KEEFE BETWEEN: OLEKSANDR KOLYESNIKOV Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER O'KEEFE J. [ 1 ] This is an application for judicial review of the decision of a visa officer at the Canadian Consulate General in New York City, United States, dated June 18, 2001, wherein the visa officer refused the applicant's application for permanent residence in Canada. [ 2 ] The applicant requests that his application for judicial review be allowed, the decision of the visa officer be quashed, and his application for permanent residence in Canada be reconsidered by a differently constituted tribunal.

Background [ 3 ] The applicant is a citizen of the Ukraine. He is married and has one son. [ 4 ] The applicant is a dancer, who has studied and worked in this field. In 1996, he graduated from the Lviv National Institute of Choreographic Arts, with a Diploma of Choreographer. Since 1985 he has been employed as a professional dancer. At the time of his application, he was performing for the Kalinka Performing Arts Company, in Toronto, Ontario. [ 5 ] The applicant applied for permanent residence in Canada, stating that he intended to be a "self-employed dancer/performer".

On May 10, 2001, he was interviewed in respect of his application by a visa officer. [ 6 ] By letter dated June 18, 2001, the visa officer refused the applicant's application stating: . . . You do not meet the definition of "self-employed" because you have [not] convinced me that you will be able to become successfully established in your proposed business venture in Canada. I do not see from the documents that you have provided and from what you indicated at your interview that you would be able to actually run a profitable business.

In my opinion, you do not have the in depth experience, the skills, the expertise nor the ability to be able to establish successfully as self-employed. Due to all of this, I am not satisfied that you would be able to become successfully established in Canada in your proposed business venture. [ 7 ] The visa officer assessed the applicant as a Choreographer, NOC (National Occupational Classification) 5131.1, and Ballet Dancer, NOC 5134.1, as follows: Age 10 Occupational Factor 03 Education and Training 15 Experience 06 Demographic Factor 08 Education 13 Knowledge of English 06 Knowledge of French 00

Personal Suitability 04 Bonus 00 TOTAL 65 [ 8 ] In her affidavit, sworn August 24, 2001, the visa officer attested, in part, as follows: . . . I concluded that the total liquid and tangible assets that the Applicant had available to establish his business and support himself, his wife and his son was approximately $8,000. I reviewed the Application, the documents provided, and what the Applicant had indicated at his interview.

I was not satisfied that the Applicant had the ability to establish or purchase a business in Canada that would create an employment opportunity for himself and would make a significant contribution to the economy or the cultural or artistic life of Canada. While I accepted that the Applicant was employed as a ballet dancer, he had no experience or training in self-employment. His source of employment had always been through various companies and troupes. He had never owned or managed a business.

I was not satisfied that the Applicant had the experience, skills, expertise or ability to establish and manage a ballet school or be self-employed as a ballet teacher. . . . [ 9 ] This is the judicial review of the decision of the visa officer. Applicant's Submissions [ 10 ] The applicant submits that the visa officer made an error of law by unreasonably deciding that the applicant did not have the experience, skills or expertise to successfully establish himself as self-employed.

The applicant submits that the visa officer ignored the evidence before her and failed to consider whether a freelance dancer could qualify under the self-employed category. [ 11 ] The applicant submits that it is patently unreasonable to conclude that only principal dancers, and not supporting dancers, can make a significant contribution to the cultural or artistic life of Canada. It is further submitted that it is unreasonable to conclude that numerous colleagues of the applicant, all of whom have been accepted for permanent residence in Canada, are all principal dancers.

The applicant submits that the visa officer also erred by concluding that the applicant was never a principal dancer. [ 12 ] The applicant submits that in order to assess a person's likely contribution to the cultural and artistic life of Canada, the person's talent in his chosen field is an important factor to be considered. [ 13 ] The applicant submits the visa officer erred in law and made an unreasonable decision by concentrating on the applicant's inability to make a large sum of money since being in Canada. [ 14 ] The applicant submits that the visa officer committed an error of law by focussing on past performance instead of considering the applicant's future prospects in his chosen field.

Respondent's Submissions [ 15 ] The respondent submits that in order for the applicant to succeed there must be either an error of law apparent on the face of the record or a breach of the duty of fairness. [ 16 ] Preliminarily, the respondent objects to the use of exhibits "M" and "K" of the applicant's affidavit, and any assertions of fact and argument relating to these exhibits, as this evidence was not before the visa officer when she made her decision. [ 17 ] The respondent submits that the visa officer did not commit a reviewable error and did not misinterpret the definition of a "self-employed person".

The respondent notes that the only source of employment of the applicant has been as a dancer through various troupes and that he has never been self-employed. [ 18 ] The respondent submits that the visa officer reasonably concluded that the applicant had neither the business ability, nor the personal financial resources, to establish a business in Canada. [ 19 ] The respondent submits that the visa officer did not suggest that only principal dancers could make a significant contribution, but rather she was not sure he would make such a contribution to the cultural or artistic life of Canada. [ 20 ] Issue Did the visa officer err in law by making an unreasonable decision and by misinterpreting and/or ignoring the evidence before her?

Relevant Statutory Provisions and Regulations [ 21 ] The relevant portions of the Immigration Regulations, 1978 , S.O.R./78-172 state: 2.(1) "self-employed person" means an immigrant who intends and has 2.(1) « travailleur autonome » s'entend d'un immigrant qui a

2.(1) "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; 8.

(1) Subject to

section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant . . . (

b) in the case of an immigrant who intends to be a self-employed person in Canada, on the basis of each of the factors listed in Column I of

Schedule I, other than the factor set out in item 5 thereof; . . . 2.(1) « travailleur autonome » s'entend d'un immigrant qui a l'intention et qui est en mesure d'établir ou d'acheter une entreprise au Canada, de façon à créer un emploi pour lui- même et à contribuer de manière significative à la vie économique, culturelle ou artistique du Canada. 8.

(1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint: . . .

b) dans le cas d'un immigrant qui compte devenir un travailleur autonome au Canada, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, autre que le facteur visé à l'article 5 de cette annexe; . . .

(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in Column I of

Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in Column II thereof opposite that factor, but he shall not award for any factor more units of assessment than the maximum number set out in Column III thereof opposite that factor. . . .

(4) Where a visa officer assesses an immigrant who intends to be a self-employed person in Canada, he shall, in addition to any other units of assessment awarded to that immigrant, award 30 units of assessment to the immigrant if, in the opinion of the visa officer, the immigrant will be able to become successfully established in his occupation or business in Canada. 9.

(1) Subject to subsection (1.01) and

section 11, where an immigrant, other than a member of the family class, an assisted relative, or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if (

a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations; (

b) where the immigrant and the immigrant's accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with

section 8,

(2) Un agent des visas doit donner à l'immigrant qui est apprécié suivant les facteurs énumérés dans la colonne I de l'annexe I le nombre voulu de points d'appréciation pour chaque facteur, en s'en tenant au maximum fixé à la colonne III, conformément aux critères visés dans la colonne II de cette

annexe vis-à-vis de ce facteur. . . .

(4) Lorsqu'un agent des visas apprécie un immigrant qui compte devenir un travailleur autonome au Canada, il doit, outre tout autre point d'appréciation accordé à l'immigrant, lui attribuer 30 points supplémentaires s'il est d'avis que l'immigrant sera en mesure d'exercer sa profession ou d'exploiter son entreprise avec succès au Canada. 9.

(1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si:

a) l'immigrant et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas

partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement; et

b) lorsqu'ils entendent résider au Canada ailleurs qu'au Québec, suivant son appréciation de l'immigrant ou du conjoint de celui-ci selon l'article 8: (

i) in the case of an immigrant other than an entrepreneur, an (

i) dans le cas d'un immigrant, autre qu'un entrepreneur, un

(

i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment, . . . 11.

(3) A visa officer may (

a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by

section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or (

b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by

section 9 or 10, if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer. (

i) dans le cas d'un immigrant, autre qu'un entrepreneur, un investisseur, ou un candidat d'une province, il obtient au moins 70 points d'appréciation, . . . 11.

(3) L'agent des visas peut

a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou

b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10, s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.

Reasons and Order [ 22 ] Issue Did the visa officer err in law by making an unreasonable decision and by misinterpreting and/or ignoring the evidence before her? The applicant, in his application for permanent residence in Canada stated that his intended occupation was "Self-employed Dancer/Performer".

At the interview, he indicated that he would continue to work as a dancer, but planned to open a school with his employer (according to the visa officer's affidavit at paragraph 11) to teach children how to dance. [ 23 ] The visa officer's refusal letter read in part as follows: You do not meet the definition of "self-employed" because you have [not] convinced me that you will be able to become successfully established in your proposed business venture in Canada.

I do not see from the documents that you have provided and from what you indicated at your interview that you would be able to actually run a profitable business. In my opinion, you do not have the in depth experience, the skills, the expertise nor the ability to be able to establish successfully as self-employed.

Due to all of this, I am not satisfied that you would be able to become successfully established in Canada in your proposed business venture. [ 24 ] For ease of reference, I will repeat the definition of "self-employed person": "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; « travailleur autonome » s'entend d'un immigrant qui a l'intention et qui est en mesure d'établir ou d'acheter une entreprise au Canada, de façon à créer un emploi pour lui-même et à contribuer de manière significative à la vie économique, culturelle ou artistique du Canada.

In Ying v. Canada (Minister of Citizenship and Immigration) , [1997] F.C.J. No. 1350 (QL) (T.D.) , Jerome A.C.J. (as he then was) stated at paragraphs 5 to 7: The jurisprudence has 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. With respect to the first branch, this Court found in Yang v.

Canada (Minister of Employment & Immigration), a case which involved a musician seeking to come to Canada and become self-employed as a music teacher, that: [t]he 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 she teach? third, can she 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.

Her 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. (supra at 56) Thus, procedural fairness requires that the visa officer address each of the three questions and that they be given equal weight in the determination of whether the applicant should qualify as a "self-employed person." The applicants' "Development Plan in Canada", found at page 26 of the record submitted by the Ministry of Citizenship and Immigration on May 30, 1996, states that they intend to, "give art shows and music concerts, so in this way we can make the cultural situation of the community more colorful [sic]." In rejecting their application, the visa officer explained that,

You are a musician, and your husband is an artist. You expressed an intention to support yourselves through two means - the sale of your husband's paintings, and traditional Chinese concerts that you intend to give. However, your main source of employment has always been through your orchestra. Although you occasionally give solo performances, it is always with the backing of, and arranged by, your orchestra. Other than giving occasional music lessons, you have not had any experience in self employment.

Similarly, your husband's primary source of employment has been as a professor at the Nanjing Normal University. At your interview, he stated that his art has been state supported. He has not had experience in self employment. (Letter of February 15, 1996) I am not satisfied that any reviewable errors were made by the visa officer in arriving at this conclusion. The three questions posed in Yang can be rephrased to suit the situation in the case at bar:

(1) Is Ms. Huang an accomplished musician? Is Mr. Gao an accomplished artist?

(2) Can Ms. Huang organize and lead a musical troupe? Can Mr. Gao establish a presence in Canada and sell his paintings?

(3) Can Ms. Huang be self-employed as a leader of a musical troupe, and Mr. Gao as an artist and art dealer? While the applicants satisfy the first question, it is not evident that either has any experience or training which would permit a positive response to the second question. As a result, it is impossible to evaluate their ability to be self-employed, and a negative response must be recorded for the third question.

It is clear from my review of the record and the materials filed by both parties that the visa officer considered these issues when reviewing the present application for permanent residence, and that she did not misinterpret the definition of a "self-employed person." [ 25 ] The applicant has always performed through various companies and troupes (paragraph 13 of visa officer's affidavit, respondent's record, page 6).

The CAIPS notes indicate that the applicant told the visa officer that he had never been self-employed (tribunal record at page 123). [ 26 ] I am satisfied that the applicant is an accomplished dancer which satisfies question (1) of the Ying, supra test. The remaining two questions from Ying, supra may be restated as follows for this case:

(2) Can the applicant organize and run a ballet school for children or can the applicant be established as a self-employed dancer in Canada?

(3) Can the applicant be self-employed either as a ballet school operator or as a self-employed dancer in Canada? [ 27 ] I have reviewed the record and I cannot find evidence to satisfy question (2). Consequently, I cannot answer question (3) either as I do not have the necessary information.

I have reviewed the record and I am of the view that the visa officer considered the evidence submitted by the applicant to see if he fit the definition of self-employed, and after reviewing this evidence, she concluded that the applicant would not be able to become successfully established in his proposed business venture in Canada. I am of the opinion that the decision of the visa officer was a reasonable decision and it should not be set aside by this Court. [ 28 ] I add that the applicant's failure to meet the first part of the definition of a "self-employed" applicant causes the application to fail.

The application for judicial review is therefore dismissed. [ 29 ] Neither party wished to propose a serious question of general importance for certification. ORDER [ 30 ] IT IS ORDERED that the application for judicial review is dismissed. "John A. O'Keefe" J.F.C.C. Ottawa, Ontario March 27, 2003 FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-3495-01 STYLE OF CAUSE: OLEKSANDR KOLYESNIKOV - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: Thursday, October 31, 2002 REASONS FOR ORDER AND ORDER OF O'KEEFE J. DATED: Thursday, March 27, 2003 APPEARANCES : Jack Davis FOR APPLICANT Stephen H. Gold FOR RESPONDENT SOLICITORS OF RECORD : Davis & Grice 706 - 1110 Finch Avenue West Toronto, Ontario M3J 2T2 FOR APPLICANT Morris Rosenberg, Q.C. Deputy Attorney General of Canada FOR RESPONDENT