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), 2013 FC 135, 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.