Thursday, 19 November 2015 / Published in Immigration Manuals

Start-Up Business Class – Determining Membership in the Class

Last Updated on December 23, 2016

This section contains policy, procedures and guidance that the staff of Citizenship and Immigration Canada (CIC) typically refer to. The authorities have placed this on the website of Citizenship and Immigration Canada (CIC) as a courtesy to stakeholders.

Substituted Evaluation

Officers have the ability to substitute their evaluations for the requirements specified in the Ministerial Instructions (MIs) on a case-by-case basis. However, they would do this only if they believe that the requirements are not sufficient indicators of whether or not the foreign nationals have the ability to establish themselves economically in Canada.

In some situations, the officers might choose to use substituted evaluation – whether negative or positive. In this scenario, the scope of what the officers might consider while exercising their authority would tend to supersede the prescribed list of factors. It is possible that in some situations, the applicant might have ‘almost met’ the prescribed requirements. However, this in itself is not sufficient grounds for recommending the use of a positive substituted evaluation.

It is worth highlighting that officers must not confuse substituted evaluation with Humanitarian and Compassionate (H&C) authority. The authorities have addressed this appropriately in the provisions specified in A25 – refer to Appendix A. Federal Court case law indicates that officers would need to consider substituted evaluation only if an applicant or the applicant’s representative requests it. However, officers would need to examine the circumstances of the case before considering this. In addition, there is no requirement for the officers to conduct an interview, if the applicant does not make a compelling case.

In some situations, the officers might find that the case does not warrant the consideration of a substituted evaluation. In this scenario, the officers would need to indicate this clearly in their case notes. They would need to highlight this in the formal refusal letter as well. Thereafter, they would need to provide a brief summary of the reasons for refusing to consider substituted evaluation in that specific case.

The exercising of substituted evaluation would typically depend on the merits of each individual case. Therefore, officers would need to use the terms specified in the legislation such as:

Substituted evaluation or,
The ability of the applicants to establish themselves economically in Canada

In certain situations, the officers might decide to use negative substituted evaluation. This would typically be the scenario where the applicant meets all the requirements of the class. In these situations, the officers would need to:

Communicate their concerns in writing and provide ample opportunity for the applicant to respond to the concerns raised either via correspondence or documentation
Obtain written concurrence from a designated officer and,
Provide the relevant reasons for using negative substituted evaluation in the formal refusal letter

Similarly, in some situations, the officers might decide to use positive substituted evaluation. This would typically be the case when the applicant does not meet one or more of the requirements of the class. In these situations, the officers would need to:

Obtain written concurrence from a designated officer and,
Place a note in the Global Case Management System (GCMS) providing reasons for the use of positive substituted evaluation

The officers would need to exercise discretion when they consider using substituted evaluation. This is particularly so in cases when they determine whether an applicant is a member of the Start-Up Business Class. It is worth mentioning though, that officers would not be able to use substituted evaluation for overcoming the absence of a commitment from a designated entity. This is in accordance with the provisions specified in MI 2 (2) (a).

Note:

The use of substituted evaluation always requires the written concurrence of a second officer

Fraud Detection and Deterrence

Officers would need to undertake both targeted and random verifications for detecting and deterring fraud. They would need to do this on a percentage of cases high enough to act as a meaningful disincentive for those who engage in fraudulent practices. Some of the ways by which they could detect and combat fraud include:

Interviews (refer to Appendix B)
Site visits and,
Telephone checks

Addressing Integrity Concerns

Officers would need to consider carefully the integrity of all supporting documentation. Thereafter, they would need to investigate any suspicious documents or inconsistencies related to the submission. It is worth mentioning that any material misrepresentation is grounds for inadmissibility in its own right. If the authorities find individuals involved in such fraudulent practices – whether directly or indirectly, they would prescribe a two-year period of inadmissibility for these individuals.

Situations could arise where the officers have some concerns regarding the accuracy or authenticity of the information or documentation. Similarly, officers might find some discrepancies in the information or documentation specified in the application. For this, they would need to follow up or seek clarifications from: