Federal Skilled Workers

The Substituted Evaluation

Colin R. Singer
May 6, 2015

The Substituted Evaluation

Under the provisions specified in R76 (3), the authorities have the ability to substitute an officer’s evaluation for the requirements specified under the provisions of R76 (1) (a) in respect of an application for permanent residence in the Federal Skilled Worker Class.

Typically, the authorities will assess whether the foreign nationals have the ability to establish themselves economically in Canada or not. For determining this, the authorities will need to consider:

The requirements specified under R76 (1) (a) – whether or not they are met – and,
Whether the skilled worker has received the minimum number of points referred to in R76 (2)

Both these aspects could be sufficient indicators of the foreign national’s ability to establish themselves economically in Canada.

However, if both these aspects are not sufficient indicators of the foreign national’s ability to establish themselves economically in Canada, the officers have the authority for substituting the criteria specified in R76 (1) (a) with their assessment of the likelihood of the abilities of the skilled workers to establish themselves economically in Canada.

Officers would typically need to consider substituted evaluations on a case-by-case basis. In this scenario, the officers have the authority to consider any relevant factors possible. However, officers would need to be mindful of the fact that just because an applicant ‘almost met’ the requirements of the Federal Skilled Worker Class does not by itself, provide sufficient grounds for recommending the use of positive substituted evaluation.

In addition, section A25 (1) contains various provisions pertaining to humanitarian and compassionate authority. Officers would need to ensure that they do not confuse substituted evaluation with humanitarian and compassionate authority. It is worth highlighting that humanitarian and compassionate authority enables the Minister (or the Minister’s delegates) to:

Grant permanent residence or,
An exemption from any applicable criteria or obligation of the Immigration and Refugee Protection Act (IRPA)

The Minister (or the Minister’s delegates) would typically utilise this authority if they come across sufficient grounds for humanitarian and compassionate considerations relating to the foreign national.

Situations might arise where an applicant (or their representative) requests that the officer consider exercising their substituted evaluation powers in the applicant’s favour. These requests might be oral or in writing. In this scenario, the officers would need to examine the circumstances thoroughly. If, in the officer’s opinion, the applicant does not make a compelling case for substituted evaluation, the officers would need to remember that there is no requirement that the authorities interview the applicant in these cases.

Therefore, in some situations, the officers might feel that the case does not merit substituted evaluation under the circumstances. In this scenario, the officers would need to indicate this in their:

File notes and,
Formal refusal letter (along with a brief summary of their reasons)

Officers would also need to use the terms specified explicitly in the legislation when they refer to substituted evaluation. Therefore, they would need to refer to substituted evaluation in writing as:

Substituted evaluation or,
The ability to establish oneself economically in Canada

In some situations, the applicant might meet all the requirements expected for becoming a member of the Federal Skilled Worker Class. In this scenario, the officer might decide to use substituted evaluation i.e. a negative substituted evaluation. Therefore, the officer would need to:

Communicate any concerns the officer might have to the applicant in writing

Thereafter, the officer would need provide sufficient opportunities for the applicant to respond to the concerns raised
The applicants could respond to the concerns raised by the officer via:

Correspondence or documentation and / or,
An interview

Obtain written concurrence from a second designated officer in case the applicant continues to fail in satisfying the officer about the applicant’s ability to establish themselves economically in Canada and,
Provide the relevant reasons for the use of negative substituted evaluation in the formal refusal letter sent to the applicant and in the Global Case Management System (GCMS)

Similarly, there might be situations where the applicant might not meet all the requirements expected for becoming a member of the Federal Skilled Worker Class. In this scenario, the officer might decide to use substituted evaluation i.e. a positive substituted evaluation. Therefore, the officer would need to:

Obtain written concurrence from a second designated officer and,
Provide the relevant reasons for the use of positive substituted evaluation in their notes in the Global Case Management System (GCMS)

Note:

It is worth noting that a substituted evaluation requires the concurrence of a second designated officer – this is in accordance with the provisions specified under R76 (4)
In addition, officers would only need to use a substituted evaluation for overcoming the points assessment against the selection criteria

Officers would need to ensure that they do not use a substituted evaluation for overcoming the applicant’s failure for meeting the eligibility criteria under: