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  • Writer's pictureRaymond Lo

Self-Employed Persons Class PR Applications: What we could learn from case law...

... regarding the requirement that you have the ability to be self-employed in Canada.

This article discusses the following with respect to the Self-employed Persons Class program:

  1. How court cases have become a source of law for immigration officers to find that an applicant has failed to meet the intention and ability to be self-employed requirement on the basis that they have not taken "concrete steps" towards setting up their Canadian business.

  2. What are some examples of "concrete steps" that an applicant can take to persuade an officer that they can successfully carry out their Canadian business.

  3. What could be done if your application has been refused.

This article assumes that you are familiar with the Self-employed Persons Class program. For those of you who aren't, you can find some information about this program on Immigration, Refugee and Citizenship Canada's ("IRCC") website, including these specific IRCC webpages:

The definition of a "self-employed person" for Canadian immigration purposes contains three requirements. In order to qualify as a "self-employed person" for Canadian immigration purposes, an applicant must show that they have:

  1. The relevant experience as defined in ss. 88(1) of the Immigration and Refugee Protection Regulations;

  2. The intention and ability to be self-employed in Canada; and

  3. The intention and ability to make a significant contribution to specified economic activities in Canada.

ss. 88(1), Immigration and Refugee Protection Regulations ("IRPR")

Demonstrating to IRCC that you meet the first requirement is a fairly straightforward exercise. The above-linked IRCC webpages should give you a good idea of whether you meet the relevant experience requirement and what to submit to IRCC to demonstrate that you meet it. What you should be doing to satisfy IRCC that you meet the second and third requirements is less obvious. IRCC's website and the relevant legal provisions offer little insight into how you would go about showing IRCC that you possess the intention and the ability to be self-employed in Canada (the second requirement) and to make a significant contribution (the third requirement). The goal of this article is to give you a better idea about what you could be doing to show IRCC that you meet the second requirement by turning to case law and by providing some examples. 1. How court cases have become a source of law for immigration officers to find that an applicant has failed to meet the intention and ability to be self-employed requirement on the basis that they have not taken "concrete steps" towards setting up their Canadian business In assessing whether an applicant possesses the intention and ability to be self-employed in Canada, some immigration officers will consider what actual steps an applicant has already taken towards setting up their self-employed business in Canada. There is nothing on IRCC's website nor in Immigration and Refugee Protection Act nor in the IRPR that requires that applicants be actively setting up their Canadian business before immigrating to Canada. Where an applicant is already operating a successful self-employed business outside of Canada, you'd think that submitting proof of their successes abroad ought to satisfy IRCC of their ability to successfully run a similar business in Canada. This is not necessarily the case however. In fact, a review of Federal Court cases reveals that an applicant's lack of "concrete steps" has become a reason that officers commonly cite in their written decisions to refuse Self-employed Persons Class applications. What is a Federal Court judicial review? When an immigration application is refused, the applicant can attempt to persuade the Federal Court to engage in a judicial review of the refusal decision. A judicial review involves a judge reviewing the decision making officer's refusal reasons and rendering a judgment on whether to overturn the refusal decision. Such judgments can often reveal what officers are looking for when deciding whether to approve or refuse an application. In doing so, they can give us examples of what future applicants can be doing to optimize their chances of success on their own immigration applications. When judges make decisions, their decisions become a source of law for future cases. What do judicial review decisions tell us about what Self-employed Persons Class applicants could do to satisfy IRCC of their ability to be self-employed in Canada? In earlier judicial review cases of Self-employed Persons Class applications, such as in the 2008 case of Kim v. Canada (MCI), 2008 FC 1291, ("Kim"). judges have held that it is reasonable for immigration officers to cite an applicant's lack of concrete planning or research in justifying their decision to refuse an application:

[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”.

As this excerpt shows, the court in Kim upheld an officer's decision to refuse a Self-employed PR application due in part to the lack of a sufficient business plan. This decision does not surprise me. It seems fair that applicants should conduct some sort of research on the Canadian industry and/or location in which they plan on setting up their business. However, some immigration officers have taken it one step further and are expecting that Self-employed PR applicants not only demonstrate concrete planning, but also demonstrate that they have taken concrete actions to set up their Canadian business. To put it simply, some officers not only want to see that you have a detailed business plan but want to see that you have taken actual steps in carrying out those plans. In the 2019 case of Wei v. Canada (MCI), 2019 FC 982, ("Wei"), Justice Annis held that this is reasonable for an officer to hold such expectations of Self-employed PR applicants:

[20] ... All the questions asked in the interview were entirely relevant to the issues, and the Applicant’s answers demonstrate that he had only the vaguest of plans with nothing in the way of concrete steps taken to put them in place. [44] As a final word on the subject, the manner whereby the three requirements of experience ability and intention come together to demonstrate a viable economic venture will vary depending upon the circumstances... fundamental to every application is a demonstration that the projects have been thoroughly conceived and concrete steps taken to ensure the implementation that will result in a successful economic activity to meet the requirements of a self-employed immigrant under section 88(1).

The Wei decision might give the impression that Mr. Wei's application was poorly put together (I'll save you the trouble of reading the lengthy decision by saying that it does give such an impression). That said, having pulled the court records and viewed the application materials myself, I wouldn't say that it was a subpar application. In the subsequent case of Gur v. Canada (MCI), 2019 FC 1275 ("Gur"), Justice Roy quoted the above excerpted para. 44 of Wei and endorsed it as follows:

[18] ... It seems to me that such a comment stands to reason and I share the view expressed in that case. The visa officer’s decision not to conclude that the applicant’s burden to show the ability to become economically established in Canada is eminently reasonable. The application does not evince the kind of precision needed in order to satisfy someone of the test provided at sections 100 and 88 of the Regulations.

Wei was also cited in the 2020 cases of Ebrahimshani v. Canada (MCI), 2020 FC 89 ("Ebrahimshani") and Rezaei v. Canada (IRCC), 2020 FC 444. In Ebrahimshani, Justice Strickland writes:

[51] Further, “a measure of precision” is required in order to satisfy the test of the ability to become economically established in Canada, and every such application must demonstrate that the proposed venture has been “thoroughly conceived and concrete steps taken to ensure the implementation that will result in the successful economic activity to meet the requirements of self-employed immigrant under section 88(1)” (Gur v Canada (Citizenship and Immigration), 2019 FC 1275 at para 18 referencing Wei v Canada (Citizenship and Immigration), 2019 FC 982 at para 44).

Following the Wei decision, I've had several unsuccessful Self-employed Persons Class applicants contact my firm wanting to seek judicial review of their negative decision. I've noticed that some of these refusal decisions have adopted the term "concrete steps" and other language used in Wei. In one instance, the refusal reasons even cited and quoted from Wei. Based on my review of post-Wei judicial review decisions and of post-Wei refusal reasons, it is my observation that some officers see Wei as a source of law to justify refusing Self-employed PR applications where the applicants have not yet begun to actively implement their business plans. While officers are allowed to consider court cases and in fact should be considering court cases as a source of law when deciding applications, it is my opinion that some officers are being too overzealous in relying on cases like Wei to make the finding that one's lack of preemptive actions in setting up their Canadian business equates to them not possessing the intention and ability to be self-employed in Canada. I do not think such treatment of Wei is warranted. In Wei, the judge held that it was reasonable for the refusing officer to infer from Mr. Wei's lack of concrete actions that he does not possess the ability to execute his planned business activities in Canada. However, Mr. Wei's proposed business in Canada was a monumental one. It involved producing a television series in Canada, hiring and flying in foreign actors and crew, and importing in the filming equipment, among other tasks, none of which Mr. Wei had actively started doing. In my opinion, it is an overextension to apply Wei to applications in which the applicant is planning on opening a small business in Canada and to those in which the applicant has demonstrated an ability to successfully operate such a business abroad. I have now seen Wei being applied to a variety of applicants (a graphic designer, a personal trainer, and a skating coach, among others) whose proposed Canadian businesses are in no way comparable in complexity to Mr. Wei's proposed business. Given this, I always advise my Self-employed PR clients that, in addition to putting together a detailed business plan, they should be taking it a step further by actively executing on some of the steps set out in their business plan. 2. What are some examples of concrete steps that an applicant could take to persuade IRCC that they have the ability to be self-employed in Canada The take away from the above section is that it is generally advisable for Self-employed Persons Class applicants to demonstrate to IRCC that they have taken actual steps in carrying out their business plan. If you are applying under this program and think that this is too much to ask of someone who does not even know whether their application will be granted, you won't find any disagreement from me (and hopefully not from the officer assigned to decide your application). Given that past cases have shown that some officers do place value on the concrete actions that an applicant has taken to set up their Canadian business, it is prudent to keep this in mind when putting together your application. The actions that a Self-employed Persons Class applicant could take to strengthen their application depends on their specific circumstances. Where the success of an applicant's proposed Canadian business will depend on relationships with stakeholders, then it might make sense to begin establishing those relationships. For example, a skating coach may want to show IRCC that they have already received the authorization of a private rink in Canada to be able to operate coaching sessions on their premises. Where an applicant could provide some of their services to the Canadian population remotely, then securing some Canadian projects while still abroad goes to show one's ability to run a business that will be successful in Canada. For instance, an artist who produces both traditional and digital artwork could demonstrate their ability to succeed by showing that their digital artwork has already been purchased from within Canada. An applicant who is not yet fluent in one of Canada's official languages may be well served by enrolling in English or French lessons, and/or by demonstrating why their lack of fluency would not impede their ability to be self-employed in Canada. Other steps that I have seen applicants take towards setting up their Canadian business include incorporating their Canadian business as well as making an exploratory visit to Canada to meet with stakeholders, to develop business relationships, and to conduct inspections (e.g., a personal trainer may want to inspect the quality of goods of various Canadian workout equipment suppliers). Ultimately, the actions that an applicant may want to take are highly dependent on their planned Canadian business. If you are unsure of where to begin, I would suggest consulting with authorized immigration counsel with experience in representing clients on such applications.

3. What if my application has been refused? If your Self-employed Persons Class application has been refused, it is generally recommended that you consult with an authorized immigration representative on your options. Your options would include seeking judicial review from the Federal Court, requesting reconsideration from IRCC, reapplying and/or considering other immigration pathways. You should do this without delay as some options are time-sensitive. In my opinion, it would make sense to consult with a lawyer as opposed to an immigration consultant at this stage. This is not intended to be a knock against consultants. The only type of representative that is allowed to represent you at Federal Court is a lawyer. Given that one of your options is to seek judicial review, it makes sense to consult with a representative who is able to assist you in pursuing the judicial review option. This way, if it is determined during your consultation that judicial review is the recommended option, then you wouldn't have to find another representative to take your case to court. It is a good idea to seek consultation on how to proceed with a refusal decision even if you realize that you had not taken actions to implement your Canadian business plan. It could be that you had demonstrated your intention and ability to be self-employed in Canada in various ways other than by taking concrete action, which the officer failed to consider. It could also be that the officer refused your application for an entirely unrelated reason. As applications can be refused for a wide variety of reasons, it is recommendable that you obtain legal advice in the unfortunate event that your application is refused.

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