12. Procedure: Making the final selection decision.... 8)
R76(2) empowers the Minister to set the “minimum number of points required of a skilled worker” – or, as it is commonly known, the “pass mark.”
To determine the most up-to-date pass mark, consult that CIC website
Visa officers will make a final selection decision for applications that are assessed by the CIO as meeting the pass mark set by the Minister. The visa office will review the application in detail, along with the case analysis provided by the CIO, and will make the final selection decision based on the total points earned by the applicant for the selection factors described in Section 11.
If the applicant's total score is equal to or greater than the pass mark set by the Minister, then the visa officer will make a positive selection decision, and proceed to determining admissibility (Section 13).
If the applicant's total score is less than the pass mark set by the Minister, then the visa officer will make a negative selection decision, record the outcome and reasons in GCMS, and send a letter to inform the applicant that their application has been refused for insufficient points (see Appendix C for sample letter).
Note: Officers may choose to exercise their authority for substituted evaluation in respect of the points assessment and the final selection decision. For more information, refer to section 12.2.
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12.1. Settlement funds
In addition to the selection criteria set forth in R76(1), the applicant must also have sufficient funds available to support their settlement in Canada pursuant to R76(1)(b)(i).
Pursuant to R76(1)(b)(ii), applicants are not required to have settlement funds if the applicant is authorized to work in Canada and has been awarded points for arranged employment in Canada, as defined in R82(1), under R82(2)(a), (b) or (d).
The funds must be:
available and transferable; and
unencumbered by debts or other obligations.
Officers must be satisfied that the applicant has at their disposal, with sufficient liquidity, and with the ability to transfer those assets, the necessary threshold of funds to support their establishment in Canada on arrival.
The amount of funds is assessed according to the applicant's family size, using 50% of the current Low-Income Cut-off (LICO) from Statistics Canada for urban areas with populations of 500,000 or more.
Note: In terms of the funds required, the number of the applicant's family members includes both accompanying and non-accompanying dependants.
Note: Refer to the CIC website for the current settlement funds requirement
Pursuant to R77, the requirements and criteria set forth in R76 must be met at the time the application is made, as well as when the permanent resident visa is issued. If the applicant is unable to demonstrate that they have sufficient funds available to meet the requirements, the officer should refuse the application and proceed to section 14.2.
12.2. Substituted evaluation
R76(3) makes possible the substitution of an officer's evaluation for the requirements set forth in R76(1)(a) in respect of an application for permanent residence in the Federal Skilled Worker Class.
If the requirements set forth in R76(1)(a), whether or not they are met and the skilled worker has been awarded the minimum number of points referred to in R76(2), are not sufficient indicators of whether the foreign national will become economically established in Canada, an officer may substitute for the criteria set out in R76(1)(a) their evaluation of the likelihood of the ability for the skilled worker to become economically established in Canada.
Pursuant to 76(4), substituted evaluation requires the concurrence of a second designated officer.
Note: Substitution of evaluation can only be used to overcome the points assessment against selection criteria. It cannot be used to overcome an applicant's failure to meet eligibility criteria under Ministerial Instructions, minimum requirements or the requirement for settlement funds.
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Substituted evaluation is to be considered on a case-by-case basis. The scope of what an officer may consider as relevant cannot be limited by a prescribed set of factors in support of exercising their authority for substituted evaluation.
The frequency with which substituted evaluation authority is exercised, whether negative or positive, will depend on the merits of each individual case. The fact that an applicant “almost met” the requirements set forth for the Federal Skilled Worker Class is not, in itself, sufficient grounds to recommend the use of positive substituted evaluation.
For the sake of clarity, officers should employ the terms used in the legislation, such as “substituted evaluation” or “ability to become economically established in Canada.”
Substituted evaluation is not to be confused with humanitarian and compassionate authority, which enables the Minister or his/her delegates to grant permanent residence or an exemption from any applicable criteria or obligation of the IRPA if justified by humanitarian and compassionate considerations relating to the foreign national.
Federal Court case law indicates that if an applicant or their representative requests orally or in writing that the officer consider exercising their substituted evaluation powers in the applicant's favour, officers must examine the circumstances. There is no requirement that an interview be conducted in cases when the applicant did not make a compelling case for substituted evaluation. If the officer does not consider substituted evaluation appropriate under the circumstances, they should clearly indicate this in the file notes and in the formal refusal letter, along with a brief summary of their reasons for refusing to exercise/use positive substituted evaluation.
If an officer decides to use substituted evaluation when the applicant did meet all the requirements to become a member of the Federal Skilled Worker Class (i.e., negative substituted evaluation), then the officer will:
o communicate their concerns to the applicant in writing and provide sufficient opportunity for the applicant to respond to those concerns, through correspondence/documentation and/or an interview;
o if the applicant still fails to satisfy an officer as to their ability to become economically established, obtain written concurrence from a second designated officer; and
o provide reasons for the use of negative substituted evaluation in the formal refusal letter sent to the applicant (see Appendix D for sample letter) and in GCMS.
If an officer decides to use substituted evaluation when the applicant did not obtain the minimum number of points required to become a member of the Federal Skilled Worker Class (i.e., positive substituted evaluation), then the officer will:
o obtain written concurrence from a second designated officer; and
o add a note in GCMS providing reasons for the use of positive substituted evaluation.
12.3. Use of interviews
In most cases, officers should be able to determine membership in the class and whether the skilled worker can become economically established in Canada – either to approve or refuse an application – based on the information and documentation provided by the applicant. However, in some cases, an interview may be necessary in order to determine membership in the class and/or ability to economically establish.
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In accordance with principles of procedural fairness, concerns that a visa officer may have regarding the accuracy or authenticity of information or documentation should be communicated to the applicant, whether these concerns are raised as the result of site visits, telephone checks, or through other means. Concerns can be communicated to the applicant in writing or at an interview.
Officers may choose to conduct interviews with applicants to:
ensure that information or documentation submitted as part of the application is truthful and complete;
detect and deter fraudulent information and documents;
clarify specific information or details; and
conduct quality control.
Note: In convoking an applicant for an interview, officers should provide appropriate context as to the reason for the interview so that the applicant is aware of the general purpose in advance of attending.
Offices other than the one responsible for application processing may be called upon to conduct interviews should the need arise. For example, applicants may be convoked for an interview at a non-processing office to accurately assess the applicant's eligibility or admissibility, including the need to interview family members as part of the application process.
Note: Officers may not conduct interviews to assess an applicant's language proficiency.
12.4. Detecting and deterring fraud
Interviews, site visits, and telephone checks have proven to be the most effective ways to detect and combat fraud. The information gained through interviews where fraud is detected will help officers to identify current trends and patterns, and refine their approach to fraud deterrence on an ongoing basis.
Visa offices will be expected to undertake both targeted and random verifications to detect and deter fraud. The volume and percentage of cases subject to verification should be high enough to act as a meaningful disincentive to those who would engage in fraudulent practices.
Pursuant to A40, material misrepresentation is grounds for inadmissibility in its own right with a prescribed two-year period of inadmissibility for those who are, directly or indirectly, involved in such fraudulent practices.
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