Learning moments – Relevant experience for Self-Employed Class
July 8, 2020
Brought to you week by week by Chantal Desloges and her fabulous team. Visit them here.
Hello fellow practitioners! This week’s question deals with relevant experience in applying for permanent residence in the Self-Employment Class.
Question
My question is about Self Employed class, specifically the relevant experience factor. Regulation subsection 88(1) define the relevant experience as minimum two years of experience consisting of :
in respect of cultural activities,
(A) two one-year periods of experience in self employment in cultural activities,
(B) two one-year periods of experience in participation at a world class level in cultural
activities.
My client has more than two years of experience participating in world class level in culture activity, but he gained this experience while he was employed, the question is: is the employment experience while participating in a world class culture activities considered as “Relevant Experience” in respect to Self Employed Class?
The way the regulation read in the subsection quoted above is that paragraph “A” clearly specify the experience to be under self employment activities, however, paragraph “B ” keeps the door open for employment experience subject that the activities are in world class level. Is this correct?
Answer
This question deals with relevant experience in cultural activities in respect to the Self-Employed Class. Specifically the question looks to whether a person could claim self-employed experience while they were also gainfully employed. It is important to first look at the Immigration and Refugee Protection Regulations (IRPR) to define both the Self-Employed Persons Class and relevant experience in relation to cultural activities
S.100 of the IRPR provides that based on ability to become economically established in Canada, a foreign national who is self-employed within the meaning of the IRPR may become a permanent resident.
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).
(2) If a foreign national who applies as a member of the self-employed persons class is not a self-employed person within the meaning of subsection 88(1), the application shall be refused and no further assessment is required.
The IRPR defines a “self-employed person” at s. 88(1):
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
“Relevant experience” is also defined at s. 88(1):
relevant experience, in respect of
(a) a self-employed person, … means a minimum of two years of experience, during the period beginning five years before the date of application for a permanent resident visa and ending on the day a determination is made in respect of the application, consisting of
(i) in respect of cultural activities,
(A) two one-year periods of experience in self-employment in cultural activities,
(B) two one-year periods of experience in participation at a world class level in cultural activities, or
(C) a combination of a one-year period of experience described in clause (A) and a one-year period of experience described in clause (B),
The definition inherently consists of a couple of important parts – demonstrating experience as self-employed in the cultural sector OR demonstrating experience in participation at a world class level, AND demonstrating the ability and intention to support oneself in Canada in the cultural sector. In subsection (i)(A) it would be necessary to show that the applicant successfully supported themselves through self-employment, while in subsection (i)(B) it would be necessary to show participation but not necessarily successful self-support from such participation. That might lead to questions about the ability to support oneself in Canada, but that is another issue.
The IRCC Operation Bulletin as well as the Operational Manual OP 8: Entrepreneur and Self-Employed further define relevant experience as follows:
- Applicants must demonstrate that they have at least two years of relevant experience during the period beginning five years before the date of the permanent resident application and ending on the day a determination is made on the application, as outlined in the definition.[1]
- Self-employed experience in cultural activities or athletics will capture those traditionally applying in this category, for example, music teachers, painters, illustrators, film makers, freelance journalists. Beyond that, the category is intended to capture those people who work behind the scenes as a self-employed person, for example, choreographers, set designers, coaches and trainers.[2]
- Participation at a world-class level in cultural activities or athletics intends to capture performers. This describes those who perform in the arts, and in the world of sport. “World class” identifies persons who are known internationally. It also identifies persons who may not be known internationally but perform at the highest levels in their discipline.[3]
You can find the Operational Manual OP 8: Entrepreneur and Self-Employed here:
- canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/op/op08-eng.pdf
From the question, it is hard to discern if the participation in the world class level cultural activity was a part of the person’s gainful employment or if the person participated in a world class level cultural activity and was separately employed. In any event, the real question is whether the applicant can demonstrate word class level participation and whether the applicant could successfully support themselves through such activities in Canada.
An applicant must show “…that they have been able to support themselves and their family through their talents and would be likely to continue to do so in Canada.”[4] The relevance of this is in the foreign national’s ability to support themselves through such activities in Canada. The first part of their current ability to support themselves and their family prior to applying, is more related to subsection (i)(A) and for the purposes of this question would not apply.
This was reaffirmed in the case of Momeni. In the case Justice Gleeson found that the Applicant did not fall in the Self-Employed class stating:
[18] Consideration of Mr. Momeni’s ability to support himself and his family through his talents is a factor identified in the Manual and was relevant to the Officer’s assessment of whether the relevant experience definition had been satisfied. The Officer was not satisfied that Mr. Momeni had been able to support himself as a self-employed individual in the field of cultural activities and therefore was not satisfied he had met the test for “relevant experience”. Having reached this conclusion, the Officer then noted the absence of experience in world class level cultural activities. The Officer did not err by interpreting the definition of “relevant experience” as requiring Mr. Momeni to satisfy both the self-employment and world class experience prongs of the definition. Rather, the Officer found Mr. Momeni satisfied neither.[5] [emphasis added
The client may still be a member of the Self-Employed Class, if they can show to the Officer that their participation in a world class level cultural activity was not just performed at the highest level, but as stated in the Federal Court decision of Griscenko, where Justice Near, sided with the Respondent:
[18] …I accept the Respondent’s submission that the term “world-class level” would logically imply some comparison between those recognized as world leaders in a given discipline in relation to the Applicant.[6] [emphasis added]
As the definition above, and the case of Griscenko, show, in order for your cultural activity to be considered at a world class level, it is not enough to show that you performed internationally, but that you have been recognized around the world comparatively to the world leaders in that specific activity. The analysis of whether the events were in fact at a world class level will be carried out if the person was employed during that time as those were not periods of self-employment, so they need to be at a world class level.
If the client can show that their participation is at a world class level, then if they were separately employed during that time, this will not be an impediment to being found a member of the Self-Employed Class, as was reaffirmed in the Federal Court case of Guryeva, so long as they can establish themselves as self-employed in Canada:
[15] But there is another area of concern for the Court today. The Officer has also attached great importance to the fact that the applicant has worked part-time as a computer layout operator since 2009, but this element is certainly not determinative of her capacity to establish herself as an artist in Canada. In Yao v Canada (MCI), 1999 CanLII 8419 (FC) at paragraph 12, Justice Sharlow states:
[12] I agree with counsel for Ms. Yao that there are flaws in the reasoning as expressed in the visa officer’s statement. It is illogical to reach a negative assessment of Ms. Yao’s ability to be a self-employed writer in Canada on the basis that in China she has been employed in other positions while she wrote her books, and that her agent takes care of publishing and business matters for her in China. No doubt many self-employed writers in Canada are also employees, and use agents to publish and market their books.
[16] Therefore, the simple fact that the applicant has had another job since 2009 should not be determinative in itself. The issue is whether the applicant can establish herself as a self-employed artist in Canada.[7] [emphasis added]
If the client can show evidence of this in regarding their participation at a world class level, there will be no concern for the separate employment. It will then be on the client to show evidentiary proof of the other two conditions in order to properly be considered a member of the Self-Employed Class.
1] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/economic-classes/self-employed-persons/assessing-application-against-selection-criteria.html
[2] Ibid
[3] Ibid
[4] Operational Manual OP 8: Entrepreneur and Self-Employed, s.11.3
[5] Momeni v. Canada (Citizenship and Immigration), 2017 FC 304, para. 18
[6] Griscenko v. Canada (Citizenship and Immigration), 2012 FC 614, para 18
[7] Guryeva v. Canada (Citizenship and Immigration), 2015 FC 1103, paras. 15-16