Last Updated on August 29, 2016
The Provincial Programs
It is worth mentioning that the officers remain obliged for applying the regulatory definition of ‘entrepreneur’. However, provincial nominee programs exist that are not subject to the definition of entrepreneurs as outlined by the federal government. As such, many provincial nominee programs have the ability to select individuals who have a relevant business background.
In many cases, these provincial nominee programs reflect the provincial or territorial priorities, experiences and the knowledge of local conditions.
The Cost Recovery Fees and the Right of Permanent Residence Fee (RPRF)
It is worth mentioning that applicants would need to pay the cost recovery fee at the time they make the application. This cost recovery fee is not refundable. As such, the officers would need to levy the cost recovery fee for persons who intend to immigrate to Canada. Similarly, officers would only be able to refund the Right of Permanent Residence Fee (RPRF) upon request, to applicants who do not obtain the permanent resident status.
Similar to the cost recovery fee, the Right of Permanent Residence Fee (RPRF) is also only applicable for people who intend to immigrate to Canada. In some situations, successful applicants might decide not to use their visas. These individuals would need to return these visas to the visa office for obtaining a refund of the Right of Permanent Residence Fee (RPRF). Officers would need to inform the unsuccessful applicants that they are entitled to receive a refund of the Right of Permanent Residence Fee (RPRF). Typically, the refusal letter would contain this information. In most cases, the visa office that finalised a case bears the onus for processing any related Right of Permanent Residence Fee (RPRF) refund if the applicant has paid the Right of Permanent Residence Fee (RPRF) earlier.
It is worth highlighting that non-accompanying dependents do not need to pay these fees. This despite the fact that they would require to undergo the appropriate statutory processing.
The Request to Change the Category
Once an applicant submits an application, no regulatory authority has the power to change categories. This is in accordance with the provisions specified in R97 (2). R97 (2) specifies the minimal requirements for entrepreneurs. Similarly, R100 (2) specifies the minimal requirements for the self-employed. The manner in which the authorities have formulated the direction contained in the two paragraphs is clear. As such, if the officers find that the applicant does not meet the prescribed definition, they would need to refuse the application.
The Effect of Changing Categories on the Cost Recovery Fees
As indicated by the above paragraph, at present, the current regulatory package carries no provision for changing categories.
Releasing Information to Provinces and Territories
Officers would need to accommodate requests for information from the provinces and territories. This directive is applicable based on the provisions of the Privacy Act and the Access to Information Act. In many cases, provinces and territories like remaining informed of the visas issued to business immigrants. This is especially so in the case of visas issued to business immigrants destined to their areas. This is why a number of provinces have negotiated Memoranda of Understanding (MOU) for facilitating this exchange of information.
The Memoranda of Understanding (MOU) enable Citizenship and Immigration Canada (CIC) to provide copies of:
- The Applications for Permanent Residence in Canada
- IMM 0008EGEN and,
- Personal Worth Statement or,
- Business Applicant Summary
Citizenship and Immigration Canada (CIC) would need to provide these documents on a quarterly basis. In many cases, they would need to include the entrepreneur’s overseas address and the contact address in Canada as well. This information enables the provinces to assist and monitor the entrepreneurs before and after their arrival.
Requesting and Reviewing Documentation – General (A16)
Officers would typically need to request documentation from the applicant that serves to support the applicant’s application. The officer would need to examine the documentation and ensure that:
- The documentation requested for primarily provides evidence about the applicant’s financial position and any previous entrepreneurial background and,
- The officer actively discourages the submission of any formal business plans
- This is because there is no basis in law that requires entrepreneurs to:
- Undertake a specific business activity or,
- Locate in a specific area
- This is because there is no basis in law that requires entrepreneurs to:
Officers would need to accord the same processing priority to business immigrants as they do to other categories of immigrants. Similarly, applicants would need to understand that their applications would not receive special consideration because they might have opted for a lawyer or a consultant to represent them. As such, lawyers and consultants representing business applicants would need to comply with the same standards that apply to third party representatives in any other kind of immigration case.
Applying Procedural Fairness
Situations could arise where the officer might have concerns about the eligibility or the admissibility of the applicant. In this scenario, the officers would need to give the applicant a fair opportunity to correct or contradict the concerns highlighted. In addition, they would need to give the applicant an opportunity to rebut the content of any negative provincial assessment. This is especially so for negative provincial assessments that could serve to influence the final decision. It is worth mentioning that the officer remains obliged to provide a thorough and fair assessment in compliance with the team and spirit of the legislation and procedural fairness requirements.
File Retention and Disposal
Officers would need to retain the records of successful investors for three years from the date of visa issuance. Similarly, officers would need to retain the records of refused applicants for a period of five years from the date of final disposition.
Computer Assisted Immigration Processing System (CAIPS) Records
The visa office would need to make its records available to the inland offices upon request. This includes providing access to the inland offices to their:
- Microfilmed records or,
- Computer Assisted Immigration Processing System (CAIPS) records
This is in accordance with the provisions specified in the Privacy Act.
The information provided by the visa office could help in determining whether any misrepresentation has taken place on the application for permanent residence. Inland officers also have the authority to gather the information they deem as necessary for the purpose of assessing an ‘Application to cancel conditions – Entrepreneur’ i.e. IMM 5344B. This is in accordance with the provisions specified in A40 (1) (a) and A41 (a). The officers might require information when they contemplate enforcement action against entrepreneurs for non-compliance with the imposed conditions as well.
It is worth highlighting that the Business Immigration Division at NHQ has access to Computer Assisted Immigration Processing System (CAIPS). This enables the Division to review case notes from time to time. This is particularly so when a province or a visa office contacts it. Reviewing the case notes enables NHQ to monitor entrepreneurs who fail to meet their conditions.