Federal Skilled Worker Program applicants need to understand that even if they meet the minimum requirements of the program, pass the 67 point threshold, and are issued an Invitation to Apply for permanent residency under Express Entry, that there is still the possibility that their permanent residency application will be refused due to a negative substituted evaluation.
(3) Whether or not the skilled worker has been awarded the minimum number of required points referred to in subsection (2), an officer may substitute for the criteria set out in paragraph (1)(a) their evaluation of the likelihood of the ability of the skilled worker to become economically established in Canada if the number of points awarded is not a sufficient indicator of whether the skilled worker may become economically established in Canada.
(4) An evaluation made under subsection (3) requires the concurrence of a second officer.
As the above suggests, the possibility of a substituted evaluation also exists.
The Immigration, Refugees and Citizenship Canada (“IRCC“) processing guidelines state that:
Note: Substitution of evaluation can be used to overcome only the points assessment against selection criteria. It cannot be used to overcome an applicant’s failure to meet eligibility criteria under Ministerial Instructions, minimum requirements or the requirement for settlement funds.
Substituted evaluation may be considered on a case-by-case basis. Officers may consider any relevant factors. The fact that an applicant “almost met” the requirements of the federal skilled worker class is not, in itself, sufficient grounds to recommend the use of positive substituted evaluation.
Substituted evaluation should not be confused with humanitarian and compassionate authority [A25(1)], which enables the Minister and his delegates to grant permanent residence or an exemption from any applicable criteria or obligation of the IRPA if justified by humanitarian and compassionate considerations relating to the foreign national.
If an applicant or their representative requests orally or in writing that the officer consider exercising their substituted evaluation powers in the applicant’s favour, officers must examine the circumstances. There is no requirement that the applicant be interviewed in cases when the applicant did not make a compelling case for substituted evaluation. If the officer does not consider substituted evaluation appropriate under the circumstances, they should clearly indicate this in the file notes and in the formal refusal letter, along with a brief summary of their reasons. When referring to substituted evaluation in writing, the terms used in the legislation, such as “substituted evaluation” or “ability to become economically established in Canada”, should be used.
If an officer decides to use substituted evaluation when the applicant did meet all the requirements to become a member of the federal skilled worker class (i.e., negative substituted evaluation), the officer will
- communicate their concerns to the applicant in writing and provide sufficient opportunity for the applicant to respond to those concerns, through correspondence/documentation and/or an interview;
- if the applicant still fails to satisfy an officer as to their ability to become economically established, obtain written concurrence from a second designated officer; and
- provide reasons for the use of negative substituted evaluation in the formal refusal letter sent to the applicant and in GCMS.
Positive Substituted Evaluation
Substituted evaluations occur on a case-by-case basis. The test for a substituted evaluation is whether or not the officer believes “the likelihood of the ability of the skilled worker to become economically established in Canada”. There is no prescribed list of factors that an officer may consider relevant. Furthermore, as noted in Marr v. Canada, officers are not under a duty to provide reasons for their decision not to exercise their discretion to apply a positive substituted evaluation. An officer simply has a duty to inform an applicant that the request for substituted evaluation was considered.
There have been a few instances where applicants who did not meet the 67 points threshold requested positive substituted evaluation because they had significant settlement funds. However, as the Federal Court held in Jain v. Canada (Citizenship and Immigration), significant settlement funds alone are insufficient to demonstrate likely economic establishment. They can be a consideration, but are not determinative.
Negative Substituted Evaluation
If an officer decides to use negative substituted evaluation, then the officer must communicate his/her concerns to an applicant and provide the applicant with an opportunity to respond to the concerns.
The case of Debnath v. Canada (Citizenship and Immigration) illustrates the process. There, the applicant was a citizen of a Bangladesh who practised medicine at a large government hospital in Malaysia. In his application for permanent residence, he had secured 68 points, which is more than the 67 required under the program. At the interview, however, the visa officer told the applicant that he was concerned about the potential for recognition of his medical qualifications in Canada. The doctor submitted various documents related to his qualifications. The visa officer still disagreed, and used a substituted evaluation to reject the application. The officer noted that the applicant had failed to establish how he would qualify as a doctor in Canada. The Court agreed, noting that the applicant’s plans to become economically established were “cloudy.” A similar case in which the Federal Court upheld an IRCC officer’s decision to exercise his discretion to refuse a doctor who got 72 points can be found at Gharialia v. Canada (Citizenship and Immigration), 2013 FC 745.
It is important to note that when determining whether to apply negative or positive substituted evaluation the issue is whether the applicant will be able to become economically established in Canada. It it not necessary that an applicant find skilled employment or work in the applicant’s field, as per Rezaeiazar v. Canada, 2013 FC 761.
Finally, in Asadi v. Canada, the Federal Court noted that neither “integrity” or “level of commitment to living and working in Canada” are factors that can be considered in a substituted evaluation.