#9069 - Economic Class - Immigration and Refugee Law

Three types: skilled worker, business immigrant and live in caregiver

• economic immigrants have the opportunity to be family members (cannot obtain PR if not disclosed in application. If a dependent is inadmissible, that may affect the principal applicant. Must disclose all dependents and update if you have a child in a reasonable time period otherwise you could be deemed to have misrepresented and become inadmissible for 5 years.

• skilled worker program has the highest contingency

TYPE 1a: Federal Skilled Worker (*Onus on applicant to satisfy requirements)

No right of appeal to IAD for skilled workers, but can seek review at FC (60 days to file for leave (Gulati v Canada 2010 FC). Can be reviewed on standard of correctness (procedural fairness) or mixed fact/discretion.

STEP 1: Initial Threshold Required (main criteria)

1. Requires at least 1 yr of continuous, and paid work experience (full time or equal amount in part time)

   1. in single occupation

   2. within last ten years

2. Must be at Skill Type 0 (management occupations) or Skills A (professional occupations) or B (technical and trade occupations) of Canadian National Occupation Classification (NOC)

3. Performed substantial # of main duties of occupation as set out in NOC description

4. Scored 7 on each of 4 areas of reading, writing speaking and listening

5. Must have CDN diploma, certificate or credential or a foreign equivalent (if credentials from abroad, must have assessed by agency approved by CIC – assessment must be less than 5 yrs old)

STEP 2:

1. Valid offer of employment OR

   1. permanent, full time and not seasonal work in NOC 0, A or B and working in CDA on WP that was granted through LMO or in job exempt from LMO OR employer has positive LMO from HRSDC

2. Have work experience in one of eligible occupations OR

   1. listed on CIC website (cap for total per category is 300)

3. Meet requirements of PhD stream (Cap 1000/yr)

   1. enrolled in CDN PhD program for at least 2 years, be in good academic standing, no award requiring return to home country OR graduated in past 12 months from PhD program w/no requirement to return to home country

STEP 3: Point system

• 67 required (s. 76(2) REGS); must be met at time of application and when visa issued (s.77); MCI can change at any time based on economy, projected number of PRs and outstanding applications

• if multiple applications, onus on applicant to show which ones he wants to be considered under NOC; officer under duty to assess under each (Li v Canada 1990 FC)

STEP 4: Financial Requirements (unless an offer of arranged employment)

• Reg 76(b) requires settlement funds: sufficient and available funds to meet requirements or that they have arranged employment as defined in Reg 82

• Funds must be 1) available 2) transferrable and 3) unencumbered by debts (liquid)

• Amount based on family size

Substitute Evaluation (Reg 76(3))

• Officer holds discretion to issue visa to skilled worker that doesn’t reach 67 pt threshold (may refuse) (Reg 76(3))

• Substituted evaluation must receive concurrence from senior officer (Reg 76(4))

• Applicant must request that officer exercise his or her discretion (Yan v Canada MCI)

• Officer does not have to look for exceptional circumstances unless asked to

• Feds can make changes to point system and apply retroactively if applied fairly (Kazi v Canada 2003 FC)

• Officer must identify and document facts demonstrating pts awarded not sufficient indicator for becoming economically est. in CDA; if negative for applicant, must provide sufficient opportunity for person to address officer’s concerns

• Cannot exercise SE for 1) refusal due to insufficient funds (Reg 76(3)) 2) failure to meet definition of skilled worker (R75)

Dogra v Canada [1999] FCJ No 560 (Permanent Residence Application)

F: Citizen of India living in New York for last 5 years. Applied for PR as SW (she is a teacher and school guidance counselor). Rejected on grounds that she had not reached 70 units on pt system (para 9(1)(b)(i) of Immig regs). There were issues with respect to veracity of support letters re: guidance counseling and expressed lack of knowledge of CDN culture. It is alleged that he asked her questions about pop culture in Canada, what crack cocaine was, etc.

I: Did the officer err in law when he evaluated the applicant’s counseling experience at zero and deemed her to have no cultural knowledge?

D: yes

Ratio: Lack of knowledge of Canadian customs and culture is not a requirement for receipt of a visa for permanent residence with respect to skilled workers. It is not an officer’s job to assess equivalence of credentials (NOC prescribes this).

Reasons: Officer erred in counting points (should have had 66, not 61), and understanding of school guidance counselor position (he noted it was in Pakistan while she worked in India). Both indicate a lack of care. Assessing equivalents of overseas applications is not something visa officers are necessarily equipped to do. There was cultural insensitivity to the claim that she would not be able to assist students who were not from her background.

Rezaeiazar v Canada [2013] FCJ No 804 (permanent residence application)

F: Iranian citizen (professor) application as a federal skilled worker under ‘university professor’ code declined in Ankara by visa officer. ‘Procedural Fairness Letter’ indicated that visa officer was concerned w/point achievement for successful establishment in Canada. English test score was 0 for reading. Despite letter from brother indicating employment potential at Swiss Chalet restaurant (for graphic design), the letter didn’t state the contents of the position. Officer provide negative substituted evaluation assessment.

I: Did the officer breach the principles of procedural fairness by failing to raise concerns w/applicant in a way that enabled her to properly respond?

D: no; outside of Dunsmuir range because officer presumed immediate self sufficiency (returned for reconsideration)

Ratio: The skilled worker program requires that an individual can become economically sufficient. Procedural fairness requires applicant having opportunity to respond to inadequacies of an application.

Reasons: Not unreasonable, lacking procedural fairness, wrong presumptions on economic clout. Dunsmuir v NB (standard of review analysis need not be conducted at every instance), but officer breached procedural fairness. Letter did not suggest there were issues with husband’s language skills but factored this into decision. The letter provided from the brother addressed concern with type of work to be done in Canada. Applicant understood language concerns from officer and established corroborating evidence. Officer did not err in speculating as to language and PhD program, so the decision was not unreasonable. She lacked basic prerequisites for academic posting in CDA (Phd and English).

Chen v Canada [1994] 1 FC 639 (FCA) (Permanent Residence Application + $500 Christmas Card)

F: resident of China denied PR by visa officer – worked in Canada for three years at McMaster. Successful interview but awaited a long...