Self-employed person - Business plan not convincing enough, Tekcan v. Canada (Citizenship and Immigration)
| Court(s) Database | Federal Court Decisions |
| Date | 2022-05-02 |
| Neutral citation | 2022 FC 635 |
| File numbers | IMM-3257-21, IMM-3436-21 |
In a ruling on May 2, 2022, the Federal Court concluded that for self-employed individuals, experience, education, connections, etc., are irrelevant and negligible due to the lack of a meaningful business plan.
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The story goes like this:
[1] These reasons relate to two applications for judicial review regarding the visa officer's refusal to approve the sisters' applications for permanent residency under the Self-Employed (Culture, Sports) program. The Decisions are identical in nature and both dated March 25, 2021.
[2] Elvan Tekcan was the petitioner in court filing IMM-3257-21, and her sister, Godze Eda Tekcan, was the petitioner in court filing IMM-3436-21. Their petitions for reconsideration were heard together. They were represented by the same attorney and the issues raised in both petitions were the same.
[3] Both candidates have art experience in Istanbul, Türkiye. One was a gallery director and the other was the curator of that gallery and director of a second gallery. They intend to lease space in downtown Toronto and establish an art gallery. They have proposed a combined investment of $230,000 CDN.
[4] Visa applications were registered on May 24 and May 25, 2018. Both included a 36-page document titled “Business Plan” in November 2020.
I. Decision
[5] The officer focused on the Business Plan and found it insufficient because it did not show that the Applicant had conducted any research in the form of contacting industry representatives and gallery owners in Toronto to determine whether the market would favor their gallery and whether their plan was feasible. Furthermore, they did not provide any sources to determine whether their financial projections and assumptions were realistic. The officer was concerned that the plan included only very general, high-level, and open-source information about the industry.
II. The Problem
[6] The applicant raised the following issues:
- Did the officer violate procedural fairness requirements by failing to send a fairness letter to advise the applicant of concerns regarding the business plan?
- Were the decisions unreasonable because the officer only reviewed the business plan?
III. Issue 1: A fair letter?
[7] The applicant relies on the Overseas Application Processing Guide (OP-8), Entrepreneurs and Self-Employment (2008-08-07) [OP-8 Guide], section 5.14, that “when an officer has concerns about eligibility or the likelihood of selection, the applicant shall be given a fair opportunity to rectify or contest those concerns ...”.
[8] However, evidence in the form of Stephanie Pelletier's affidavit, sworn in on 9 February 2022, clearly shows that the OP-8 Guidance does not apply to visa applications issued after 2 August 2016.
[9] The question therefore arises as to what fairness is required in this context. In my view, Mr. Justice Gascon’s recent decision in the case of Mohammadzadeh v. Minister of Citizenship and Immigration, 2022 FC 75 , sets out the principles of governance. As applied to this case, the obligation of fairness placed on a visa officer is at its lowest level and does not require him to warn the applicant of concerns about the adequacy of a business plan.
[10] For this reason, the court concluded that a letter of fairness was not necessary.
IV. Problem 2: Incorrect focus on the Business Plan?
[11] The applicant argued that the Decision was unreasonable because the Officer did not consider the evidence they presented regarding their background, education, work in art galleries, relationships, previous income and management experience. They said that he should have balanced that information with the Business Plan.
[12] The Court was not convinced by this submission. While a business plan is not required to support the Applicant's visa application, once it is presented, it represents the core of the application. If it is factual and credible, other evidence about the Applicant will support its likelihood of success. However, once the Business Plan is found to be insufficient, other evidence becomes irrelevant. Experience, education and connections, etc., are meaningless without a meaningful business plan. In contrast to a lawyer's submission, no balance will be made when the Business Plan is found to be insufficient.
[13] Accordingly, it is reasonable for the Officer to only handle the Business Plan.
Our comments
Self-employment is a program for individuals with outstanding achievements in culture and sports to start their own businesses. Because it's a self-employment model, applicants who need to submit a business plan must have a well-structured plan that includes all the important steps.
- Business feasibility study
- Market strategy
- Market information
- Idea evaluation
- Develop a business plan.
- Financial model
- Access to networks of partners, customers, and suppliers.
KeyApply is a professional business immigration consulting firm, and we are a reliable partner to meticulously prepare your application.
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