Momeni v. Canada (Citizenship and Immigration), 2017 FC 304 : Refusal Upheld Where Self-Employed Applicant Failed to Establish Required Cultural Activity Experience and Economic Ability

Hamidreza Momeni, an Iranian citizen with more than 20 years of experience in the film and art industry, sought judicial review of the refusal of his permanent residence application under the Self-Employed Persons class. The visa officer found that he did not satisfy the regulatory definition of a self-employed person. The Federal Court upheld the refusal, finding the officer reasonably interpreted the requirements and did not breach procedural fairness.

Key Principle

An applicant under the Self-Employed Persons class must satisfy the complete regulatory definition, including relevant experience and the intention and ability to become self-employed in Canada and make a significant contribution to specified economic activities. Credible documents do not necessarily satisfy an applicant’s evidentiary burden, and an officer is not required to issue a procedural fairness letter merely because the evidence submitted is insufficient to establish the regulatory requirements.

Background

Mr. Momeni applied for permanent residence in June 2014 based on cultural activities. The Regulations required at least two years of qualifying experience within the prescribed period, through self-employment, world-class participation, or a permitted combination.

The officer accepted that Mr. Momeni had experience in his stated self-employed activity but was not satisfied that he met the overall definition. His reported annual earnings from cultural activities were generally below $4,000, except in 2014 when they were slightly below $8,000. Salary deposits also appeared in his bank account. The officer concluded that he had not demonstrated that he earned his living through self-employment or that he had sufficient intention and ability to establish himself and make a significant cultural contribution in Canada.

Court Findings

• Officer Did Not Require Both Alternative Experience Categories

Mr. Momeni argued that the officer wrongly required both self-employment experience and world-class cultural participation. The Court rejected this interpretation. Reading the decision and GCMS notes together, the officer found that Mr. Momeni had not demonstrated qualifying self-employment because he had not shown that he supported himself through those activities. The reference to an absence of world-class experience did not convert the alternative regulatory requirements into cumulative requirements.

• Financial Evidence Supported the Officer’s Conclusion

The operational guidance identified the ability to support oneself and one’s family through cultural talents as relevant. The officer could therefore consider Mr. Momeni’s limited cultural earnings and salary deposits when deciding whether he had demonstrated genuine self-employment and the ability to continue such activity in Canada. Although the officer’s wording was awkward, reasons are not required to be perfect.

• No Procedural Fairness Letter Was Required

The Court rejected the argument that the officer’s concerns amounted to credibility concerns requiring notice. The financial documents were supplied by Mr. Momeni and were not found fraudulent or unbelievable. They simply failed to satisfy his evidentiary burden. The Court emphasized that credible evidence may still be insufficient. Reference to 2015 income also caused no unfairness and remained relevant to assessing future intention and ability.

Outcome

The Federal Court dismissed the judicial review application. It found the decision justified, transparent and intelligible, and concluded that no breach of procedural fairness occurred. No question of general importance was certified.

Case Citation:

Momeni v. Canada (Citizenship and Immigration), 2017 FC 304 (CanLII)