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Immigration Officer Wrong Not to Conduct a “Substituted Evaluation” of Skilled Worker, Federal Court Rules

The Federal Court of Canada recently confirmed that immigration officers must perform a “substituted evaluation” of a skilled worker’s likelihood of becoming economically established in Canada—and not rely only on a points assessment to determine this question—if the skilled worker has requested such an evaluation.

Under the Immigration and Refugee Protection Regulations (IRPR), a visa officer may substitute the usual points assessment for skilled worker class immigrants with his or her own evaluation of an applicant’s likelihood of becoming economically established in Canada. The Federal Court has in previous cases held that this power is discretionary and may be performed “if the number of points awarded is not a sufficient indicator of whether the skilled worker may become economically established in Canada.”

In this case, the immigration officer had assessed the applicant at 61 points and consequently refused her application because she had not attained the required 67 points for immigration to Canada. While in her application materials the applicant had clearly requested a substituted evaluation if she did not meet the required number of points, the officer’s decision gave no indication that she had performed the evaluation.

In reviewing the officer’s decision, the Court held that, by failing to perform a substituted evaluation as requested by the applicant, the officer had breached the applicant’s right to procedural fairness. The Court accordingly ordered that the matter be remitted to another visa officer for re-determination.

For further information on the Federal Court’s ruling in this case (Chowdhury v. Canada (Minister of Citizenship and Immigration)), 2011 FC 1315) or on the requirements and process in applying for permanent resident in the Federal Skilled Worker class, please contact the immigration law specialists at Green and Spiegel LLP.