Zhang v. Canada (Citizenship and Immigration), 2019 FC 764 : Self-Employed Class Refusal Set Aside Where Officer Failed to Consider Whether High-Level Coaching Qualified as Participation in World-Class Athletics

The Federal Court reviewed the refusal of a permanent residence application under the Self-Employed Persons Class in the athletics category.

The applicant was a former national-level table tennis player who had worked for many years as a coach in China. The officer reasonably concluded that his employment at a sports school did not amount to self-employment. However, the Court found that the officer failed to consider a separate route to qualifying experience: whether the applicant’s work coaching athletes who competed nationally and internationally constituted participation at a world-class level in athletics.

Key Principle

Under the version of subsection 88(1) of the Immigration and Refugee Protection Regulations considered in this case, relevant athletic experience could be established through:

• two one-year periods of self-employment in athletics;
• two one-year periods of participation at a world-class level in athletics; or
• a combination of the two.

The phrase “participation at a world class level in athletics” was not expressly limited to participation as an athlete. An officer therefore had to consider whether high-level coaching activity could fall within that category where the evidence supported such an argument.

Background

The applicant was a Chinese citizen and table tennis coach who had previously played on provincial and national teams.

For approximately 14 years, he worked at a youth sports school in Shenzhen. He had no written employment contract but received a fixed annual salary, performance bonuses, and social insurance benefits.

Several of his students had competed successfully at national and international levels.

The officer refused the application because the applicant was considered a salaried employee rather than self-employed and therefore had not established the required relevant experience under subsection 88(1).

Court Findings

The Court agreed with the officer on the self-employment issue.

The applicant’s lack of a written employment contract was not determinative. The structure of the relationship showed many characteristics of employment: a fixed annual salary, benefits, long-term service with one institution, and no evidence that he independently coached other athletes for remuneration.

The Court therefore found it reasonable for the officer to conclude that the applicant had not established two years of qualifying self-employment in athletics.

However, that did not end the analysis.

The Regulations separately allowed qualifying experience based on participation at a world-class level in athletics. The officer considered only the applicant’s former experience as a competitive athlete and rejected it because it fell outside the required five-year period.

The officer did not consider whether his more recent coaching of athletes competing at national and international levels could satisfy this separate provision.

The Court emphasized that the wording referred to “participation” in world-class athletics, not specifically participation as a world-class athlete. The applicant’s coaching evidence was directly before the officer and therefore required consideration.

The Court did not decide whether coaching actually satisfied the regulatory requirement. That determination was left for a new officer on redetermination.

The Court separately found no procedural fairness breach. The applicant had been informed of the concern regarding self-employment and was given an opportunity to respond during the interview.

Outcome

The Federal Court allowed the application for judicial review because the officer failed to consider whether the applicant’s high-level coaching experience could constitute participation at a world-class level in athletics.

Case Citation:

Zhang v. Canada (Citizenship and Immigration), 2019 FC 764 CanLII