Operational Bulletin 499 – February 01, 2013
Determining the Ability of Provincial Nominees to Economically Establish in Canada
Summary
This Operational Bulletin (OB) provides various guidelines to assist officers. It helps officers:
- In assessing the ability of Provincial Nominee Program (PNP) applicants to become economically established in Canada and,
- Obtain clarifications on the roles and responsibilities of:
- Citizenship and Immigration Canada (CIC) visa officers and,
- Provinces and Territories (PTs)
Background
According to subsection 70 (1) of the Immigration and Refugee Protection Act (IRPR), the Provincial Nominee Class is an economic class. Therefore, officers would need to be satisfied that provincial nominee applicants have the ability to establish themselves economically in Canada.
The Roles and Responsibilities for Provincial Nominee Applications
The Minister for Citizenship and Immigration had signed various agreements with the respective provincial and territorial governments. Under these agreements, each province and territory has the authority to nominate candidates. These provinces and territories could nominate candidates based on the ability of the candidates to establish themselves economically in Canada. These candidates could establish themselves economically in Canada, specifically in the province or territory of nomination.
The authorities consider each Province and Territory (PT) to be in the best position for determining its own:
- Specific economic needs and,
- Specific labour market needs
Citizenship and Immigration Canada (CIC) has the final authority on permanent resident applications. This authority applies to permanent residence applications under the Provincial Nominee Program (PNP). Citizenship and Immigration Canada (CIC) can refuse the application on various grounds. These would typically include:
- Inadmissibility grounds
- This would include inadmissibility for financial reasons (under A39, as specified in Section 8 of ENF 2) and,
- The grounds that the applicants have not demonstrated an ability to establish themselves economically in Canada
The Applicability of the Ability to Economically Establish
The authorities have made an express declaration about the principal applicants. They have clarified that the ability to establish themselves economically in Canada only applies to the principal applicants.
The principal applicants could have various relatives. However, the chances of principal applicants qualifying under an economic class are slim. That too, solely based on the ability of their declared relatives to establish themselves economically in Canada. This raises a major concern. This concern is that economic applicants would not be able to establish themselves economically in Canada without receiving assistance from their relatives. This is especially in case such applicants rely exclusively on the financial guarantees provided by their relatives residing in the provinces. Therefore, officers have the authority to ask applicants to demonstrate and support their abilities to establish themselves economically in Canada by:
- Providing additional information and,
- Providing additional documentation
Situations could arise where a prospective nominee might have a child. However, this child does not meet the definition of the term “dependent child” under the Regulations. In these circumstances, the principal applicants would not be able to include these children in the application for permanent residence. However, each Province and Territory (PT) could decide on issuing a nomination certificate to the dependent. That too, in the dependent’s own right. However, officers would need to assess each principal applicant. They would do so on the merits of the principal applicants’ ability to establish themselves economically in Canada.
Determining the Ability to Economically Establish
In the view of the authorities, a nomination certificate is valid evidence. It shows that the Province and Territory (PT) has assessed the candidates. It also highlights that the Province and Territory (PT) has found that the candidates:
- Do have the intention of residing in the nominating province and,
- Have a strong likelihood of establishing themselves economically in Canada
These authorities consider these assessments valid indications of the view held by the Province and Territory (PT) officials.
Situations could arise where the visa officer is not satisfied that the issuance of nomination certificates provides ample indications of the applicants’ abilities to establish themselves economically in Canada. Therefore, in these situations, the visa officers might want to examine certain factors. These factors would be part of the overall assessment used for determining the applicants’ abilities to establish themselves economically in Canada. These factors could include, but are not limited to, aspects like:
- The current job or job offer
- The language ability or skills
- The work experience and,
- Education and training
The visa officers could assign different weights to these factors mentioned above, which would enable the visa officers to evaluate the applicants’ abilities to establish themselves economically in Canada. However, the visa officers would assign these weights on a case-by-case basis.
To cite an example, a situation could arise where:
- A nominee has a high level of education such as a PhD and,
- A nominee receives a nomination for a low-level service position
Visa officers would accept this mismatch. However, they would only accept such mismatches where they recognise that the job is an entry-level opportunity.
To cite another example, a situation could arise where:
- A nominee has a high level of education such as a PhD and,
- A nominee receives a nomination for a position as a welder
In this scenario, the visa officers would note that the nominee lacks the relevant levels of training and work experience. Therefore, this would highlight the fact that there is little alignment between the nominee’s labour market intentions and the nominee’s skills and abilities.
Visa officers would also need to consider various other indicators of the applicants’ abilities to establish themselves economically in Canada. One of these indicators could be the applicants’ intentions and abilities for entering the labour market. The applicants could do this to support themselves entirely. Visa officers could refuse the application in this case. However, they would only do so if they are not satisfied that the applicants intend entering the labour market.
In addition, visa officers would need to note that part-time or casual work might not meet this requirement. This is because part-time or casual work would not generate an income that would be sufficient to support the applicant fully.
Another critical indicator of the applicants’ abilities to establish themselves economically in Canada is the visa officer’s comparison of the requirements of the occupation with all the information provided by the applicants. The visa officer would find the requirements of the occupation indicated by the National Occupation Classification (NOC) in the submitted nomination certificate.
The National Occupation Classification (NOC) is the official governmental classification system of occupations in the Canadian economy. It describes aspects concerning occupations in the Canadian labour market like:
- Duties
- Skills
- Aptitudes and,
- Work settings
Readers could access the 2006 and the 2011 versions of the National Occupation Classification (NOC) on the website of the Human Resources and Skills Development Canada (HRSDC). Visa officers would need to reference the appropriate version of the National Occupation Classification (NOC), as used by the nominating Province and Territory (PT).
The visa officer would also need to examine the totality of the information provided. This would enable the visa officer to determine whether consistency exists throughout the elements of the application. This would help the visa officer to make a final determination on the application.
Situations could arise where the visa officer might require that the applicant address any concerns that arise. The applicant would need to comply with this in accordance with the principles of procedural fairness. The principles of procedural fairness appear subsequently in this document.
The Substitution of Evaluation and the Requirement for Concurrence
The visa officers have the authority to substitute their own evaluations on the likelihood of the foreign nationals’ ability to establish themselves economically in Canada. However, they would only do so if the foreign nationals’ nominations do not provide sufficient indicators when reviewed in light of the totality of the information presented. This is in accordance with R87 (3).
In such situations, a second officer would need to concur with the substituted evaluation. This is in accordance with R87 (4). Section 7.8 of OP 7b carries the details on the procedure that officers would need to follow in these circumstances.
The Obligation to Consult and Procedural Fairness
Situations could arise where a visa officer is not satisfied that the applicants have demonstrated their ability to establish themselves economically in Canada. In such instances, the visa officer would need to follow the procedural fairness guidelines. In this scenario:
- The visa officer would send a letter to the applicant, with a copy to the nominating Province and Territory (PT)
- The letter would indicate that:
- The visa officer is not satisfied with the information provided that the applicants have the ability to establish themselves economically in Canada
- The applicants might not meet the requirements for immigration to Canada
- The letter would need to provide both – the applicant and the Province and Territory (PT) – with the ability to:
- Respond
- Provide additional support of their application or nomination AND,
- Provide documentation that supports their application or nomination
- In certain situations, the visa officer could decide to exercise a negative substitution of the evaluation
- In this scenario, the visa officer would need to first consult with the government of the nominating province that has issued the certificate (this is in accordance with R87 (3))
- Then, the visa officer would need to:
- Issue the procedural fairness letter and,
- Consider any further information or documentation provided by the Province and Territory (PT)
- The visa officer would then inform the Province and Territory (PT) of the officer’s decision
- The visa officer would ask whether the Province and Territory (PT) would like to withdraw the nomination
- Finally, the visa officer would conclude the process by notifying the applicant of the refusal of the application
Source: Citizenship and Immigration Canada (CIC)
