Date: 20020531
Docket: IMM-3670-00
Neutral citation: 2002 FCT 622
BETWEEN:
CHO TAE SOO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of the visa officer dated March 10, 2000, wherein the applicant's application for permanent residence to Canada was refused.
[2] The primary issue is whether the officer erred in placing too much emphasis on whether the applicant could be self-employed as a teacher.
[3] The applicant applied for permanent residence in Canada as a self-employed applicant on November 12, 1998. He indicated his intention to teach private music lessons.
[4] The applicant is an accomplished musician. He is a member of the Seoul Symphony Orchestra and a professor at Seoul University. He has taught students on a self-employed basis in the past in Korea. He said he would recruit students through advertisements in the Korean church and in Korean newspapers in Canada.
[5] The applicant has a net worth of about $260,000. The applicant is not fully fluent in English but claimed that he possessed sufficient English to conduct a music lesson and that his intention is to concentrate on the Korean community in Canada.
[6] The officer, in his affidavit, indicates that he had several concerns with respect to the applicant's ability to establish or purchase the business:
I noted, for example, that the Applicant had pursued his teaching career in Korea primarily within the context of his full-time employment at Soong Sil University, and not on a self-employed basis. The private tutoring which he undertook in addition to his employment grew from his employment, based as it was on contacts from the university and further referrals.
The Applicant had not actively promoted or advertised his services. His work experience in Korea had not provided him with an opportunity to develop key skills required for self-employment, such as promotion, recruitment, and business management skills such as contract negotiation or market analysis. With respect to this latter skill, the Applicant had not researched or investigated business conditions in Canada or evaluated the viability of his intended self-employment. His business plan was vague and was not supported by substantive research or analysis of his intended business in Canada. This lack of research and preparation in itself reflects poorly on the Applicant's ability to be self-employed in Canada, and is indicative of his lack of ability in basic business management.
[7] After the visa officer advised the applicant of his concerns, the applicant indicated that his wife had conducted market research during her six month stay in Canada:
He stated that he had not researched actual demand in Canada because in Canada he would rely on referrals and recommendations as he does in Korea. The Applicant stated that it would take time to build connections in Canada. The Applicant's wife submitted a copy of a Korean-language newspaper from Canada with advertisements for music teachers. She stated she had contacted some of them regarding the operation of their businesses and rates they charge. She added that she did not see any ads offering lessons in violin.
[8] The officer found that these responses allayed some of his concerns regarding the demand for the applicant's services. However, his concerns regarding the applicant's ability to establish himself in his intended occupation on a self-employed basis remained.
[9] The officer refused the applicant's application on March 9, 2000, the day of the interview, and notified the applicant by letter dated March 10, 2000, stating inter alia:
The Immigration Regulations, 1978 define "self-employed person" 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;
I have determined that you do not meet the definition of a self-employed person. Specifically, you have not satisfied me that you have the ability to establish or purchase a business in Canada that could create employment for you and would make a significant contribution to the economy or the cultural or artistic life of Canada.
Analysis:
[10] The test that is to be applied in such a case was set out by Jerome A.C.J. in Yang v. MCI [1989] F.C.J. No. 218 (T.D.). He stated:
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 also clear that there will be a breach of procedural fairness where there is undue emphasis on the third question (Ho v. Canada [1989] F.C.J. No. 245 (T.D.)). The visa officer acknowledged that the applicant was a musician but refused to acknowledge that he was an accomplished musician. However, the record seems clear that he was an accomplished musician. There is also no doubt that the applicant can teach. Therefore, the question really is whether he can be self-employed as a teacher. It appears from the officer's affidavit that the focus of his decision was the applicant's ability to be self-employed.
[11] In my view there is a difference between an applicant who is to be a self-employed teacher and an applicant who is to be a self-employed business person. The visa officer here was concerned that the applicant had not gone to a business immigration seminar put on by the province for self-employed persons. I do not agree that it would be useful for someone who was going to teach music to attend such a seminar.
[12] The applicant prepared a business plan wherein he estimated his earnings for the first year at $33,000. The applicant also indicated that his rates would be $30 per hour for individual lessons and $15 per hour for group lessons. The applicant also has shown that there was a Korean community in Toronto of more than 100,000 and there is a demand for Korean violin teachers. However, the applicant did not seem to have any idea as to how many students he would have. I accept that it might be difficult for the applicant to know how many would be private and how many would be in group lessons but it does indicate some lack of knowledge of what is contained in his own business plan. The respondent takes the view that it is for the Minister to weigh the factors and unless the decision is patently unreasonable, it should be upheld. My view of the test is that it is reasonableness simpliciter, not patent unreasonableness. The cases are quite clear that it is not for the visa officer to give overemphasis to the third question over the other two questions. Although the duty of fairness may be minimal, it does at least require that the three questions receive equal consideration. In reviewing the visa officer's affidavit and notes, in my view, the visa officer has not given equal weight to the three factors. This can also be seen by the visa officer's refusal to agree that the applicant was an accomplished musician. It is a perverse finding of fact to indicate that a person with the experience of the applicant is not an accomplished musician.
[13] In the circumstances of this case the application for judicial review is granted. The decision of the visa officer dated March 10, 2000, is quashed. The application is returned to a different visa officer for redetermination.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
May 31, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3670-00
STYLE OF CAUSE: CHO TAE SOO
v.
M.C.I.
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 30, 2002
REASONS FOR ORDER OF MR. JUSTICE McKEOWN
DATED: MAY 31, 2002
APPEARANCES:
MR. CECIL L. ROTENBERGFOR THE APPLICANT
MR. GREG GEORGEFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Cecil L. Rotenberg, Q.C.FOR THE APPLICANT
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada