Kaur v. Canada (Citizenship and Immigration), 2024 FC 1427 : Canadian Experience Class Refusal Upheld Due to Excluded Self-Employment Experience

The Federal Court reviewed IRCC’s refusal of Sarabhdeep Kaur’s permanent residence application under the Canadian Experience Class. The applicant claimed Canadian work experience acquired while operating her own business under a C11 work permit. The officer refused the application because periods of self-employment cannot be counted toward the Canadian work experience requirement. The Court dismissed judicial review, finding that the refusal was required by the applicable Regulations and was the only reasonable outcome.

Key Principle

Work experience acquired through self-employment or as an entrepreneur cannot be counted toward the Canadian Experience Class work experience requirement. It does not matter whether the applicant performed the duties of a skilled occupation or held a valid C11 work permit. Where the Regulations expressly exclude self-employment, an officer has no discretion to count that experience and is not required to issue a procedural fairness letter explaining a clear legislative requirement that the applicant is expected to know.

Background

The applicant received an invitation to apply for permanent residence under the Canadian Experience Class in November 2022.

She claimed work experience with a numbered company beginning in April 2021 and provided an employment verification letter.

IRCC initially issued a procedural fairness letter questioning whether she performed the lead statement and duties of the claimed executive occupation. The officer also raised concerns about the residential business address and the comparatively low salary.

The applicant responded that she performed substantial duties, that a residential work location did not disqualify the experience, and that there was no minimum salary requirement. She also argued that she qualified under the Federal Skilled Worker Class.

The final refusal was based on the fact that her work experience was accumulated as a self-employed person operating her own business under a C11 work permit.

Court Findings

• Self-Employment Could Not Be Counted Toward Canadian Experience Class Eligibility
The Court held that the applicant did not dispute that her Canadian work experience was gained through self-employment while operating her own business under a C11 work permit. Because this fact was undisputed, the officer correctly treated the experience as falling within the statutory exclusion for self-employed work.

• Regulations Mandatorily Excluded the Claimed Work Experience
The Canadian Experience Class Regulations expressly provide that periods of self-employment cannot be included when calculating qualifying Canadian work experience. The Court found that the officer had no legal authority to count the applicant’s experience once it was determined to be self-employment, making the refusal the only reasonable outcome.

• Nature of the Duties Could Not Override the Legislative Exclusion
The applicant argued that she performed the lead statement and substantial duties of a skilled occupation. The Court held that this argument could not succeed because, regardless of the duties performed, the experience remained legally excluded due to its self-employed nature.

• No Additional Procedural Fairness Was Required
The Court concluded that the officer was not required to issue a further procedural fairness letter regarding the self-employment issue. The exclusion was contained in publicly available legislation, and applicants are expected to know and comply with clear statutory eligibility requirements.

• Officer Properly Applied Mandatory Legislative Requirements
The Court rejected the argument that the officer had fettered discretion by refusing the application. The officer was simply applying mandatory regulatory provisions that left no discretion to disregard the exclusion of self-employed work or assess the application under a different immigration class for which the applicant had neither applied nor been invited.

Outcome

The Federal Court dismissed the application for judicial review. No costs were awarded and no question was certified.

Case Citation:

Kaur v. Canada (Citizenship and Immigration), 2024 FC 1427 (CanLII)