Tejaswini Panigrahi
[Published
14 Sep, 2021 | 04:25 PM]
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10 min read
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Canada PR applications through the Self-employed category are refused oftentimes. This is because applicants fail to fulfill the definition of a Self-employed person. It is as per the IRPR - Immigration and Refugee Protection Regulations, Subsection 88/1.
So, if you are an applicant under this class, you must be aware of the legal provisions and the requirements. You must prove that you possess the ability and the intention to establish yourself economically in Canada. This is as per the IRPA - the Immigration and Refugee Protection Act, Subsection 12/2. Subsections 88/1 and 100/1 of the IRPR must also be complied with.
Check Your Eligibility for Canada PR
The IRPA Subsection 12/2 states that:
Economic Immigration
12/2: An overseas national can be selected under the economic class depending on their competency to economically establish in Canada.
The IRPR Subsection 100/1 states that:
Members of the class - Self-employed Persons Class
For the sake of the 12/2 Subsection of the Act, the Self-employed person’s category is prescribed hereby as a category of people who can obtain the Status of Permanent Residents depending on their competency to establish economically in Canada and are Self-employed people as per the definition provided in Subsection 88/1.
Definitions under the Subsection 88/1 those are applicable for this Act:
“A self-employed individual means an overseas national who has the appropriate experience and possesses the competency and the intention for being self-employed in Canada for making major contributions to distinct economic activities in Canada”.
The determination of the required ability and intent for becoming Self-employed in Canada is also as per well-defined parameters. The Officers are guided through Section 11.3, OP 8 – Self-Employed and Entrepreneur. This is for determination of experience, ability, and intention by considering factors like:
- Experience in being self-employed
- Management experience in the areas of Culture and Arts
The monetary assets of an individual can also be a parameter for measuring the ability and intent for establishing financially in Canada. No minimum investment scale exists for Self-employed individuals. The funds required are dependent on the type of work.
The key implications to bear in mind with the above factors are:
The applicant has to offer unambiguous, complete, and clear supporting proof for fulfilling the requirements as per the Checklist for Documents
- An Officer will be breaching the procedural fairness duty by not providing an applicant the chance to respond for subjective issues and supporting documents that IRCC - Immigration, Refugees and Citizenship Canada has not asked for
- An Officer has to sensibly address and assess the appropriate evidence that the applicant has provided
Now, let us try to further examine the above three implications even minutely.
The Officers at least have to offer the chance to the applicants to respond. This is when the applicant offers adequate proof for establishing that they have fulfilled the lawful requirements. Also, the officer has prejudiced concerns not mandated by the IRPR or IRPA.
Honorable Justice Mr. Boswell provided that procedural fairness mandates the applicant to have a chance to disabuse the concerns of the Officer. This is while approving the judicial review application in FC 1393, 2015; Mohitian:
"“I concur with the Applicant that it was unfair in the situation of this case. The Officer did not alert him regarding the issues about the Business Plan. This is specifically in the background that the Regulations or the Act do not mandate submission of a formal Plan of Business. An interview might not have been needed. However, a plain letter of procedural fairness notifying the applicant regarding the concerns of the Officer must have been sent to the Applicant”. "
The legal necessity for notice is detailed further in the Policy Manual of the IRCC. Section 5.14 of the OP 8: Self-employed and Entrepreneur, procedural fairness application states that:
“The applicant has to be offered a fair chance for correcting or contradicting the concerns. This is if the Officer has issues regarding admissibility or eligibility. The Applicant needs to be offered a chance for rebutting the content of any unconstructive provincial assessment that can impact the final verdict. The Officer is under obligation for offering a fair and thorough assessment complying with the spirit and terms of the law and requirements for procedural fairness.
Here, the applicant must have offered a full Canada PR application as specified by the Document Checklist of the IRCC. It includes necessary immigration forms, fee payment proof, earned educational credentials’ evidence, and proof of suitable experience 5 years prior to the submission of the application. Employment history narrative and documents supporting consistent and paid occupation and Identity documents are also included”.
It is crucial to highlight the manuals and jurisprudence that support that a market research information or business plan is not a compulsory requirement.
Manual Notes of the IRCC in its section 11.17 states that if necessary, the Officer can seek this information:
“Testimony of the former experience or else self-employment plus the fiscal situation of the applicant has to be upheld through documentary credentials. These must provide reasonable proof that the applicant deserves to be considered under the program.
Officers can request the applicants to offer proof of having researched the labor market in Canada. Further, on this basis, a realistic plan that would be fairly expected to result in self-employment has been adopted. But a formal Plan of Business that incurs avoidable expense and administrative burden is not encouraged.
If concerns remain, the Officer must schedule an interview or provide an alert in writing to the applicant”.
Finally, it is a trite rule that Officers have to deal with proof that is contradictory to the final decision and clarify why other evidence was preferred. The Court conducting the review can assume that the officer’s decision was not based on consideration of the appropriate evidence. This is an error that is reviewable. It is if the reasons of the Officer do not acknowledge crucial, suitable proof that is in contravention to the findings.
For instance, the final evidence of the applicant is an appropriate consideration while assessing the ability and intent for establishing in Canada economically.
“Whereas such proof needs to be assessed in the background of other factors, it can be applicable for corroborating the assertion of establishment by the applicant. It can demonstrate the ability of the applicant for self-sustenance till the creation of self-employment (Section 11.3, OP 8 Guide)”.
Overall, the finding of the Officer can be reliant on a subjective view with no base in the IRPA or IRPR. This is when the applicant offers unambiguous, complete, and clear supporting proof for fulfilling the requirements as per the Checklist for Documents. But the Officer continues to believe that the applicant has no intention or ability for being self-employed in Canada.
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If this concern is not informed to the applicant despite a clear directive for doing so both in the policy and jurisprudence the applicant might have been well denied an important chance for participation in the decision-making process.
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