Last Updated on March 25, 2016
Situations could arise where the requirements specified in R87.2 (3) [refer to Appendix A], whether the applicant meets them or not, are not accurate indicators of whether the foreign nationals have the ability to establish themselves economically in Canada. In this scenario, the officers could consider substituting their evaluations for the requirements specified in R87.2 (4). In addition, a second officer would need to concur with the substituted evaluation.
Officers would typically consider substituted evaluations on a case-by-case basis. For this, the officers could consider any set of relevant factors. However, it is worth noting that the fact that an applicant almost met the requirements of the Federal Skilled Trades (FST) Class cannot provide, by itself, sufficient grounds for officers to recommend the use of positive substituted evaluation.
Officers would also need to note that they must not confuse substituted evaluation with Humanitarian and Compassionate (H&C) authority, as specified in A25 (1) – refer to Appendix B. It is worth noting that Humanitarian and Compassionate (H&C) 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). However, this is only applicable in cases that have humanitarian and compassionate (H&C) considerations relating to the foreign national that justify the provision of this exemption or ability to grant permanent residence.
In some situations, the applicant or the applicant’s representative could request that the officers consider exercising their substituted evaluation powers in the applicant’s favour. The applicant or the applicant’s representative could make this request orally or in writing. In this scenario, the officers would need to review the circumstances of the case. In some cases, the officers might find that the applicant did not make a compelling case for substituted evaluation. In this scenario, there is no requirement that the officers need to interview the applicant.
Similarly, in some cases, the officers might not consider substituted evaluation as an appropriate step under the circumstances. In situations like this, the officers would need to indicate this in the notes and in the formal refusal letter. In addition, the officers would need to provide a brief summary of the reasons as well. For this, the officers would need to refer to the activity of substituted evaluation in writing. These officers would need to note that they would need to refer to the process of substituted evaluation as specified in the terms used in the legislation. Therefore, they would need to refer to these terms as:
- Substituted evaluation or,
- The ability to become economically established in Canada
The table given below highlights the situations when an officer would need to use substituted evaluation and take the requisite actions.
Possible Scenarios when the Officers Could Decide to Use Substituted Evaluation
The Actions that the Officers Would Need to Take
|If the applicant meets all the requirements for becoming a member of the Federal Skilled Trades (FST) Class
i.e. negative substituted evaluation
|The officers would need to:
|If the applicant fails to meet any one of the requirements for becoming a member of the Federal Skilled Trades (FST) Class
i.e. positive substituted evaluation
|The officer would need to:
Source: Citizenship and Immigration
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