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Officers Have Duty to Assess Applicants in the Category Applied For, Federal Court Rules

Canada’s Federal Court recently reaffirmed the principle that immigration officers have a duty to assess immigration applicants in the category they have chosen. Choosing one category because it may be faster than another does not mean you are circumventing the system. As the Court stated, “[a]pplicants have the right to submit their case in the manner which best represents them and with the highest likelihood of success.”

The applicant in this case was a successful Mexican business person and investor in Canada who had chosen to apply for permanent residence in the Federal Skilled Worker (FSW) category as a “Financial Manager” rather than in the Investor or Entrepreneur categories because he was concerned about the lengthy processing times in those categories.

His application was refused in part because the immigration officer was concerned that he was attempting to circumvent the system by applying as a FSW rather than an Investor or Entrepreneur. In Court, Citizenship and Immigration Canada (CIC) argued that the applicant had admitted as much by stating that his application under the FSW category was due to the lengthy timelines and process under the other categories. Further, CIC argued that the application should have been filed in the Investor or Entrepreneur categories because the applicant had already started a business in Canada and made substantial investments in the country.

The Court disagreed. It held that the officer had made an unreasonable inference that the applicant was trying to get around the business categories. “While the applicant did refer to the lengthy processing times for entrepreneur and investor applications in Mexico as a motivation to apply under the [FSW] category, this statement does not entail that the applicant chose this method to circumvent a category that the Officer considered more appropriate. The Officer’s findings were unreasonable, as applicants have the right to submit their case in the manner which best represents them and with the highest likelihood of success.”

For further information on the Federal Court’s ruling in this case (Maizel v. Canada (Minister of Citizenship and Immigration), 2011 FC 1026) or on the requirements and process in applying for permanent resident under the FSW program, please contact the immigration law specialists at Green and Spiegel LLP.

Please note that CIC’s annual cap of 700 applications in the Investor category was reached shortly after it was introduced on July 1, 2011, and that, since that date, a moratorium has been in effect for all Entrepreneur class applications.