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Why CIC may refuse Provincial Nominees and the Ability of to Economically Establish in Canada

Why CIC may refuse Provincial Nominees and the Ability of to Economically Establish in Canada

Operational Bulletin 499 – February 1, 2013

Summary

This Operational Bulletin provides guidelines to assist officers in assessing the ability of Provincial Nominee Program (PNP) applicants to become economically established in Canada, and clarifies the roles and responsibilities of Citizenship and Immigration Canada (CIC) visa officers as well as provinces and territories (PTs).

Background

The Immigration and Refugee Protection Regulations (IRPR), subsection 70(1), identifies the Provincial Nominee Class as an economic class and, as such, officers must be satisfied that provincial nominee applicants have the ability to become economically established in Canada.

Roles and responsibilities for provincial nominee applications

Under agreements between the Minister for Citizenship and Immigration and the respective provincial and territorial governments, each province and territory has the authority to nominate candidates on the basis of their ability to become economically established in Canada, specifically in the province or territory of nomination. Each PT is considered to be in the best position to determine its own specific economic and labour market needs.

CIC has the final authority for decision on permanent residence applications under the PNP. In addition to inadmissibility grounds, including inadmissibility for financial reasons (under A39, for which guidelines can be found in ENF 2, section 8), one of the grounds on which CIC may refuse the application is that the applicant has not demonstrated an ability to economically establish.

Applicability of the ability to economically establish

The ability to become economically established applies to the principal applicant.

It is unlikely that the principal applicant could qualify under an economic class solely on the basis of their declared relatives’ ability to become economically established. An economic applicant relying exclusively on the financial guarantee of their relative residing in the province raises concerns that the applicant is not able to establish economically without such assistance. Officers may wish to request additional information and documentation from applicants to demonstrate and support their ability to become economically established.

A prospective nominee may have a child who does not meet the definition of “dependent child” under the Regulations, and therefore cannot be included in the application for permanent residence. The PT may decide to issue a nomination certificate to the dependant in his/her own right. Every principal applicant, however, must be assessed on the merits of their own ability to economically establish.

Determining the ability to economically establish

A nomination certificate is evidence that the PT has conducted an assessment of the candidate and found that the candidate does, in the view of the PT officials, intend to reside in the nominating province and has a strong likelihood of becoming economically established in Canada.

In cases where the visa officer is not satisfied that the issuance of a nomination certificate is a sufficient indicator of an applicant’s ability to become economically established in Canada, s/he may want to examine certain factors as part of the overall assessment in determining the applicant’s ability to economically establish. These factors may include, but are not limited to: current job or job offer, language ability, work experience, and education and training.

The weight afforded to these factors of the ability to economically establish may vary on a case-by-case basis. For example, where a nominee has a high level of education such as a PhD and is nominated for a low-level service position, this mismatch may be acceptable where the job is recognized to be an entry-level opportunity. If the same PhD candidate were nominated for a position as a welder and lacked the relevant training and work experience, there would appear to be little alignment between the nominee’s labour market intentions and his or her skills and abilities.

An indicator of the ability to become economically established is the applicant’s intention and ability to enter the labour market in order to fully support him/herself. If the visa officer is not satisfied that the individual intends to enter the labour market, a refusal of the application should be considered. Part-time or casual work which would not generate enough income to fully support the applicant may not meet this requirement.

Critical in determining the applicant’s ability to economically establish is the visa officer’s comparison of the requirements of the occupation (indicated by the NOC in the submitted nomination certificate) with all of the information provided by the applicant. The National Occupation Classification (NOC) is the official governmental classification system of occupations in the Canadian economy. It describes duties, skills, aptitudes and work settings for occupations in the Canadian labour market. Both the 2006 and 2011 NOC versions can be accessed online at: http://www5.hrsdc.gc.ca/noc/english/noc/2011/Welcome.aspx. The appropriate NOC version (2006 or 2011) used by the nominating PT should be referenced.

The visa officer must examine the totality of the information provided to determine that there is consistency throughout the elements of the application prior to making a final determination. The applicant should be invited to address any concerns which arise, in accordance with the principles of procedural fairness, as discussed below.

Substitution of evaluation and requirement for concurrence

R87(3) provides specific authority for the visa officer to substitute their own evaluation on the likelihood of the ability of a foreign national to become economically established in Canada if the foreign national’s nomination is not a sufficient indicator in light of the totality of the information presented. In accordance with R87(4), a second officer must concur with the substituted evaluation. The procedure is described in chapter OP 7b, Section 7.8.

Obligation to consult and procedural fairness

When a visa officer is not satisfied that the applicant has demonstrated their ability to become economically established in Canada, the visa officer shall follow procedural fairness guidelines. The visa officer shall send a letter to the applicant, with a copy to the PT, indicating that the information provided does not satisfy the officer of their ability to become economically established and they may not meet the requirements for immigration to Canada. The letter should provide both the applicant and the PT an opportunity to respond and provide additional support and documentation of their application/nomination.

Following this step, where the visa officer decides to exercise a negative substitution of evaluation, the visa officer must first consult with the government of the nominating province that has issued the certificate [R87(3)]. Having issued the procedural fairness letter and considered any further information supplied by the PT, the visa officer should inform the PT of their decision and ask whether the PT wishes to withdraw the nomination, in advance of notifying the applicant of the refusal.

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