Reliability of CIC Cap Figures

[Note – with the recent confusion over whether the CEC cap has been reached I thought it would be useful to bring this old blog-post to the forefront.]

Many immigration programs, including the newly enacted Federal Skilled Trades Program, contain caps on the number of people who can apply.  Citizenship and Immigration Canada (“CIC“) generally advises people that they should check the CIC website before submitting applications to make sure that the cap has not been exceeded.  Unfortunately, CIC has also (successfully) argued in court that the information on their website is not reliable, and that the CIC website stating that the cap is unfilled does not create a legitimate expectation for applicants that the cap is in fact unfilled.

In Agama v. Canada (Citizenship and Immigration), an applicant was denied a permanent resident visa under the Skilled Workers Class (the “FSWC“). Under the FSWC, CIC considered a maximum of 500 applications in National Occupation Classification 0631 (“NOC 0631“) during the relevant year.

CIC posted the following information on its website regarding how many NOC 0631 applications it had received:

  • September 28, 2011 – 209 applications
  • October 10, 2011 – 229 applications
  • November 3, 2011 – 330 applications
  • November 8, 2011 – 335 applications
  • December 1, 2011 – 458 applications

The applicant filed her application on November 14, 2011. Considering that the CIC website on December 1 reported that the cap stood at 458, she thought that she had made it.

Unfortunately, on January 13, 2012, CIC informed her that her application was rejected because the cap of 500 applications for NOC 0631 had been reached.  Indeed, CIC told her that the quota of 500 had been reached on September 19, 2011.  This of course directly contradicted what was on the CIC website.

I am not going to get into the specific judicial reasoning by which the Federal Court agreed with CIC’s arguments that the CIC website is a guide only, and that the applicant should have known this.  The point of this post is simply to warn applicants that they should not rely on the cap figures posted on the CIC website.  I would also recommend that practitioners specifically warn their clients of this possibility prior to applying, and to even include it as a clause in their retainer agreements.


Visa Officers can Overrule AEOs

The Federal Court has ruled that a visa officer is entitled to override an opinion by the Department of Human Resources and Skills Development (“Service Canada“) that an arranged offer of employment is genuine.

In Ghazeleh v. Canada (Citizenship and Immigration), the Court had to determine whether a visa officer erred in awarding a Federal Skilled Worker Class applicant zero points for Arranged Employment because the officer was not satisfied by Service Canada’s Arranged Employment Opinion (“AEO“).  Specifically, the officer had concerns with the employer’s ability to employ the applicant as the company was losing money.  The applicant was unable to alleviate the officer of his concerns.

At Federal Court, the applicant’s lawyer argued that the visa officer erred in overriding the AEO.

The Court, however, disagreed, and stated that Service Canada’s opinion is only the first step in the validation of an employment offer, and does not end the inquiry.  Citing Bellido v. Canada (Minister of Citizenship and Immigration), the Court also noted:

HRDC validation is not, as the Applicant submits, sufficient evidence of arranged employment. Such validation does not remove the obligation of the Visa Officer to assess whether the Applicant is able to perform the job described in the validation.

In this case, the visa officer was not satisfied that the applicant could perform the work sought because the officer concluded that the employer’s financial circumstances meant that it could not even pay the applicant to do work.

The Court described the division of responsibilities between Citizenship and Immigration Canada and Service Canada as being:

It is the Minister of Citizenship and Immigration who is accountable, legally, for the decision to grant a visa.  To conclude that he was bound by the HRSDC opinion would be either an impermissible delegation of the Minister’s statutory obligations under the IRPA or a fettering of the Minister’s discretion.  To conclude, it is the Minister of Citizenship and Immigration who makes the decision, not the Minister of HRSDC.  HRSDC rather, offers an opinion.

If that is the case, then there’s a lot of time and money being spent on something to obtain from Service Canada something that is apparently just an “opinion.” While I appreciate that the decision to issue a visa is ultimately Citizenship and Immigration Canada’s (“CIC“), considering the amount of documentation that employers provide to Service Canada to obtain AEOs (and Labour Market Opinions), as well as the fact that Service Canada officers actually speak with the employer (something almost unheard of at CIC) to determine the genuineness of job offers, I think that there should be clear guidelines as to when CIC can overrule Service Canada on their area of expertise.  This is only logical considering that administrative law is based on the concept of specialized tribunals with expertise in their respective areas making decisions, and it is Service Canada which is trained to examine the  Canadian labour market and an employer’s capabilities.