Even 67 Points May Not Be Enough

2008-05-14

Applicants sometimes struggle with whether they should hire an immigration lawyer to represent them through the immigration process. There are many pitfalls that are not advertised by CIC that a lawyer can help you avoid.

One major potential pitfall is the ability of a Visa Officer to substitute their evaluation in place of the 67 point evaluation threshold. In other words — without representation and argument to the contrary in your initial applicaiton — a Visa Officer can deny your application even if you have 67 points.

Section 76(3) of the Regulations state:

Immigration and Refugee Protection Regulations

76(3) Whether or not the skilled worker has been awarded the minimum number of required points referred to in subsection (2), an officer may substitute for the criteria set out in paragraph (1)(a) their evaluation of the likelihood of the ability of the skilled worker to become economically established in Canada if the number of points awarded is not a sufficient indicator of whether the skilled worker may become economically established in Canada (emphasis added).

The 2007 Federal Court case of Kainth is a good example. The applicant scored 67 points. However the Visa Officer denied the application using the provision above. She did not feel the applicant could establish himself in Canada, in part because the applicant was not intending to work in his field of training as a paralegal.

The applicant appealed his denied application to the Federal Court of Canada. The Court agreed with the Visa officer and the applicant was denied entry. The Court said:

“…I am not satisfied that the points that he [the applicant] has been awarded are a sufficient indicator of the likelihood of his ability to become “economically established” in Canada. I have made this determination because [the applicant] is at a stage of his career where it would be difficult to change direction and he has stated he does not intend to pursue being a paralegal in Canada but rather that he would do “any job in Toronto”. In addition, because of his limited English abilities [the applicant] stated he would interact only with other Punjabi speakers. This indicates he does not intend to integrate into Canadian society as a whole but rather to remain within his own community. [The applicant’s] spouse has a Master’s Degree, however, she does not speak English and her experience would not likely be relevant in Canada. I do not feel that the number of points awarded (68) are a sufficient indicator of the [applicant’s] ability to become economically established in Canada.”[H]e was remarkably vague as to how he intended to support himself in Canada, indicated that he intended to restrict his integration into Canadian society to a very limited element of that society and the reality that the applicant’s spouse, though highly educated, did not have experience that would likely be relevant in Canada. Against the standard of review of reasonableness simplicitier, I am satisfied that the Officer’s determination to rely on negative discretion or negative substituted evaluation to reject the applicant’s application for permanent residence in Canada by reason of her concern that the points of assessment awarded to him were not a sufficient indicator of the applicant’s ability to become economically established in Canada, was open to her.

Conclusion

 

I always address this issue for clients in my initial application to avoid substituted decisions during the assessment of any immigration application.

As you can see, once you are denied, even the courts may not assist you.

About the author

Gianpaolo Panusa Gianpaolo Panusa is a Canadian immigration lawyer, writer, and founder of the PanCanadian Immigration Law Group based in Vancouver, Canada. Google+ Profile

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