August 8, 2019

Self Employed Cases Key Considerations

Applications for permanent residence under the federal self-employed class are oftentimes refused because an Applicant allegedly does not meet the definition of self-employed pursuant to subsection 88(1) of Immigration and Refugee Protection Regulations (IRPR).  So, what must an applicant establish?

An applicant must demonstrate that they have the intention and ability to become economically established in Canada in accordance with subsection 12(2) of the Immigration and Refugee Protection Act (IRPA) and subsections 100(1) and 88(1) of the IRPR.  Subsection 12(2) of the IRPA provides:

Economic immigration

12(2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.

Subsections 100(1) and 88(1) of the IRPR provide:

Self-employed Persons Class, Members of the class

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).

Definitions

88 (1) The definitions in this subsection apply in this Division.

[…]

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.

In determining the requisite intent and ability to become self-employed in Canada, Officers are directed in OP 8: Entrepreneur and Self-Employed, section 11.3 Determining experience, intention and ability to consider factors such as:

• Self-employed experience […]
• Management experience in the world of arts and culture […]
• A person’s financial assets may also be a measure of intent and ability to establish economically in Canada. There is no minimum investment level for a self-employed person. The capital required depends on the nature of the work. […]
• […]

With this in mind what are the key considerations?  

1. An applicant must provide clear, complete and unambiguous evidence provided in satisfaction of the Documentary Checklist). 
   
2. An officer will breach the duty of procedural fairness in failing to provide an applicant with an opportunity to respond to any subjective concerns and supporting documentation that had not been requested by Immigration, Refugees and Citizenship Canada (IRCC).  
   
3. An Officer must reasonably assess and address relevant evidence tendered by the Applicant.
   

Let’s look at these three considerations a little more closely.

Where an applicant provides evidence sufficient to establish that they meet the legal requirements and the officer has subjective concerns not required by the IRPA or the IRPR at minimum officers must provide applicants with the opportunity to respond. In granting the application for judicial review in Mohitian 2015 FC 1393 the Honourable Mr. Justice Boswell held that procedural fairness requires an Applicant have the opportunity to disabuse the Officer’s concerns:

[23] I agree with the Applicant that it was not fair in the circumstances of this case for the Officer not to have alerted him as to the concerns about his business plan, particularly considering that he was not required by the Act or Regulations to submit a formal business plan. Although an interview may not have been required, a simple procedural fairness letter informing the Applicant of the Officer’s concerns in this regard should have been sent to the Applicant. […]

This legal requirement for notice is further detailed in IRCC’s own Policy Manual, at OP 8: Entrepreneur and Self-Employed, section 5.14 Applying procedural fairness which states:

When the officer has concerns about eligibility or admissibility, the applicant must be given a fair opportunity to correct or contradict those concerns. The applicant must be given an opportunity to rebut the content of any negative provincial assessment that may influence the final decision. The officer has an obligation to provide a thorough and fair assessment in compliance with the terms and spirit of the legislation and procedural fairness requirements.

Where an applicant provides a complete permanent resident application as required by IRCC’s Document Checklist, which includes the required immigration forms, proof of fee payment, proof of earned educational credentials, proof of relevant experience during the five years before application submission, employment history narrative and documents evidencing gainful and consistent employment and identity documents.

It is important to highlight the jurisprudence and the manuals support that a business plan or information regarding market research is not a mandatory requirement. Section 11.17 of IRCC’s Manual notes an officer may request this information, if necessary:

Documentation should provide evidence of the applicant’s financial position and previous self-employment or experience. It should provide reasonable evidence that the applicant merits consideration under the program. Officers may request that self-employed applicants show evidence of having researched the Canadian labour market and adopted a realistic plan that would reasonably be expected to lead to self-employment. However, a formal business plan that would entail unnecessary expense and administrative burden is discouraged.

Where concerns persist, an officer should convoke an interview or alert an applicant in writing.

Last, it is trite law that officers must engage with evidence that runs contrary to the final decision and explain why they preferred other evidence. Where an officer’s reasons do not acknowledge important, relevant evidence that runs contrary to the findings, a reviewing court may assume that the officer made the decision without considering that relevant evidence, which is a reviewable error.  For example, an applicant’s financial evidence is a relevant consideration when assessing intent and ability to economically establish in Canada. “While such proof must be weighed in light of other elements, it can serve to corroborate the applicant’s assertion of establishment and may demonstrate an applicant’s ability to be self-supporting until the self-employment has been created (OP-8 Guide at section 11.3).”

In all, where an applicant provides clear, complete and unambiguous evidence provided in satisfaction of IRCC’s Documentary Checklist and an Officer still believes that the Applicant had no intention or ability to become self-employed in Canada that finding may well be based upon a subjective opinion not grounded in the IRPA or the IRPA.   Where that concern is not put to an applicant, despite clear direction to do so in both the jurisprudence and the policy, an applicant may well have been denied a meaningful opportunity to participate in the decision-making process. Furthermore, if the officer fails to assess evidence running contrary to a decision and the reasons provide no indication as to how the officer reasonably arrived at the conclusion in light of the evidence, the decision may well be unreasonable.  

 Thank you for reading. 

To learn more about self-employment cases click here, and for the Federal Court review process click here.