Last updated on May 5th, 2021
Last Updated on May 5, 2021 by Steven Meurrens
The Immigration and Refugee Protection Regulations (“IRPR“) provide that an immigration officer may issue a negative substituted evaluation and refuse an application where the officer is not satisfied that a provincial nomination certificate is an appropriate indicator of whether an applicant will be able to successfully establish themselves economically in Canada. Subsections 87(3) and (4) of the Regulations state that:
Substitution of evaluation
(3) If the fact that the foreign national is named in a [provincial nomination certificate] is not a sufficient indicator of whether they may become economically established in Canada and an officer has consulted the government that issued the certificate, the officer may substitute for the criteria set out in subsection (2) their evaluation of the likelihood of the ability of the foreign national to become economically established in Canada.
(4) An evaluation made under subsection (3) requires the concurrence of a second officer.
I have reproduced below an excerpt from the recently decided Federal Court decision Kousar v. Canada, 2014 FC 12, which illustrates this point. Because Kousar was a Federal Court case, Immigration, Refugees and Citizenship Canada’s (“IRCC”) refusal reasons become part of the public record. Accordingly, while I was not the lawyer involved with either the initial application or the court case, I was able to obtain and publish the refusal decision.
Kousar involved a refusal based on an officer’s determination that the applicant’s overall IELTS band-score of 3.5 indicated that the applicant was unlikely to establish herself economically in Canada. The applicant was unable to overcome the officer’s concerns. The officer’s refusal states:
The issue of IRCC refusing provincial nominees due to language concerns despite the provinces having approved their provincial nomination applications has become common enough that there is developing jurisprudence on it.
In Jalil v. Canada, 2015 FC 113, Justice Locke stated that it was appropriate for officers to assess language ability based on the job that was proposed, and not on the ability of the applicant to possibly find work in other areas. He stated:
The third argument raised by the Applicant in an effort to show that [CIC’s refusal] was unreasonable is that the Officer focused too much on the Applicant’s intended occupation. In my view, the [CIC refusal] was reasonable in this aspect since it was in this intended occupation that the Applicant indicated she planned to become economically established. Other jobs she referred to (e.g. at Tim Hortons or McDonalds) were intended simply to fund the Applicant’s efforts to become qualified in Canada. It does not appear that the Applicant’s plan was to become economically established by virtue of these other jobs.
In Kousar, Justice Zinn stated that an applicant’s statement that they could find part-time or casual work elsewhere should also not be given much weight. He stated:
In my view, in assessing whether an applicant will be able to become economically established in Canada, it is not inappropriate for an officer to initially focus on that applicant’s training and occupation. The ability of an applicant to perform those duties in Canada, and the job market for those skills, is where economic establishment is most likely to be found. However, I agree with the Applicant that “the Court has not found the legislation to contain a requirement that the person become economically self-sufficient in their qualifying occupation, or that a person has to join and participate in the labor market in a particular occupation when they arrive in Canada:” Rezaeiazar v Canada (Minister of Citizenship and Immigration), 2013 FC 761 para 82. Accordingly, if economic establishment is not found when the person’s qualifying occupation is examined, the officer must look elsewhere. I am satisfied from the passage quoted above, that the officer here did just that; he or she looked at what the Applicant said she would do — “basic odd jobs” — and determined that the Applicant would nevertheless be unable to become economically established.
In my view, it was not unreasonable for the officer to conclude that engaging in basic odd jobs, likely on a part time or casual basis since Ms. Noreen intended to attend University, is not proof of the ability to become economically established. This is explicitly stated in Manual OP 7b, which officers refer to when evaluating applications: “…part-time or casual work would not normally meet the requirement to participate in the labour market in the sense it is intended here” (emphasis added). Part-time work does not qualify as participation in the labour market because “participation in the labour market must be in a way which allows the individual to fully support themselves [sic], not merely contribute to the costs of their upkeep” (emphasis added). It is not unreasonable to conclude that Ms. Noreen would not be able to fully support herself and her three daughters, even with the assistance of her husband, if she is only working on a part-time or casual basis.
In Chaudhry v. Canada (Citizenship and Immigration), 2015 FC 1072, Justice Southcott summarized the jurisprudence nicely, stating that a visa officer is entitled to focus primarily on the intended occupation of a provincial nominee, because that is the occupation which the applicant proposes will allow him or her to become economically established. The visa officer should also consider alternative occupations proposed by an applicant to determine whether the applicant could thereby become economically established, in the sense of being economically self-sufficient.
In Hassan v. Canada (Immigration, Refugees and Citizenship Canada), 2019 FC 1096, Justice Fothergill noted that the wording of the agreement between Canada and a province might determine the amount of deference required. He wrote:
Mr. Hassan emphasizes the mandatory language in s 3.9 of Annex A to the Agreement. Under this provision, Canada must consider a Certificate of Nomination issued by PEI as determinative of two factual matters: (a) that admission of the applicant is beneficial to the economic development of PEI; and (b) that PEI has conducted due diligence to ensure that the applicant has the ability and is likely to become economically established in PEI.
The strong language contained in s 3.9 may be contrasted with the weaker language found in immigration agreements between Canada and other provinces. For example, s 4.9 of Annex A to the Canada-Saskatchewan Immigration Agreement, 2005 states that “Canada shall consider a nomination certificate […] as initial evidence”. Similarly, s 4.11 of Annex A to the Canada–Ontario Immigration Agreement explicitly reserves to federal visa officers the right to request additional documents from provincial nominees and substitute evaluations under s 87(3) of the Regulations.
The agreements can be found here. There are differences. For example:
Alberta – 5.9 Canada will consider a nomination certificate issued by Alberta as a determination that admission is of benefit to the economic development of Alberta and that Alberta has conducted due diligence to ensure that the applicant has the ability and is likely to become economically established in Alberta.
British Columbia – 4.14 Canada shall consider British Columbia’s nomination as evidence that British Columbia has carried out its due diligence in determining that an applicant will be of economic benefit to British Columbia and has met the requirements of British Columbia’s Provincial Nominee Program. AND British Columbia is responsible for conducting due diligence to ensure that the applicant has the ability and is likely to become economically established and settle in British Columbia. Notwithstanding the foregoing, Canada retains the right to request additional documentation from the nominee which supports the nominee’s ability and likelihood to become economically established and settle in British Columbia, and to substitute its evaluation of the applicant’s ability to become economically established in Canada pursuant to sub-section 87(3) of the IRPR. In exercising its responsibilities under sections 4.18 and 4.20 of this Annex, Canada may also seek clarification and request documentation from British Columbia on its assessment, the record of which is required under sections 4.10 and 8.4 of this Annex.
Nova Scotia – 3.9 Persons who are nominated by Nova Scotia will be considered as applicants in the Provincial Nominee Class as described in the Immigration and Refugee Protection Regulations and, as such, will be considered to be of benefit to the economic development of Nova Scotia and that Nova Scotia has conducted due diligence to ensure that the applicant has the ability, and is likely, to become economically established in Nova Scotia.
Saskatchewan – 4.9 Canada shall consider a nomination certificate issued by Saskatchewan as initial evidence that admission is of significant benefit to the economic development of Saskatchewan and that the nominee has the ability to become economically established in Canada.
Ontario – 4.11 Ontario is responsible for conducting due diligence to ensure that the applicant has the ability and intention to become economically established and settle in Ontario. Notwithstanding the foregoing, Canada retains the right to request additional documentation from the nominee which supports the nominee’s ability and intention to become economically established and settle in Ontario and to substitute its evaluation of the applicant’s ability and intention to become economically established in Canada pursuant to sub-section 87(3) of the IRPR. In exercising its responsibilities under sections 4.14 and 4.17, and Section 6, Canada may also seek clarification and request documentation from Ontario on its assessment, the record of which is required under section 4.10 and the Memorandum of Understanding Concerning Information Sharing Between Canada and Ontario.
This information was conveyed to the Applicant in the procedural fairness Letter which said, in part:
The ability to communicate effectively in one of Canada’s official languages is recognized as a vitally important factor in becoming economically established, information on the Immigrate Manitoba website also confirms that Nominees are expected to have the “demonstrated ability to get a job in their occupation and establish- in the local labour market, thereby making an immediate economic contribution to the province” and that “job-ready English” is now required to apply to immigrate through the Manitoba Provincial Nominee Program.
Your language scores equate to a Canadian Language Benchmark (CLB) 5 for reading and for writing, and CLB 4 for listening and for speaking. The CLBs are organized into three stages, Stage I Basic (CLB 1-4), Stage II Intermediate (CLB 5-8), and Stage III Advanced (CLB 9-12). Your language test scores indicate your English language proficiency may be described as basic in reading and writing, and intermediate in listening and speaking. Critical in determining your ability to economically establish is a comparison of your information with the requirements of the occupation indicated in your nomination. The occupation in which you have been nominated by Manitoba is manufacturing manager. The occupation whim you indicate you intend to pursue in Canada is manufacturing manager. You indicate experience .as a production manager.
The duties of a manufacturing manager may include planning, organizing, directing, controlling, and evaluating the operations of a manufacturing business, as well as hiring, supervising, and training of employees. Managing and training staff and developing and planning, directing, and evaluating operations are duties which it would appear to be reasonable to expect of any management or assistant management level job. It also appears reasonable to expect that to carry out the tasks of a manger (sic) in Canada would require an advanced level of English language proficiency. As already indicated, your demonstrated English language proficiency is at only a basic to intermediate level.
 The Applicant also submits his responses to the procedural fairness Letter were not considered. There is no merit in this submission. The Applicant’s first response to the Letter did not substantially address the language issue, except to suggest he could be tested by the Officer in an interview. He also said he could try a second round of testing which might improve his marks. Indeed, he did and his score showed an improvement from basic to intermediate. However, he had not achieved the advanced level noted in the Letter.