actually they consider the applicant case despite of the fact that applicant doesnt get 67 points. As per the instruction in OP6 manual, visa officer has right to make substitute evaluation on a case to case basis..it reads like
"R76(3) makes possible substituted evaluation by an officer. This authority may be used if an
officer believes the point total is not a sufficient indicator of whether or not the applicant may
become economically established in Canada.
Substituted evaluation is to be considered on a case-by-case basis. The scope of what an officer
might consider as relevant cannot be limited by a prescribed list of factors to be used in support of
exercising substituted evaluation. There are any number and combination of considerations that
an officer might cite as being pertinent to assessing, as per the wording of R76(3): “. . . the
likelihood of the ability of the skilled worker to become economically established in Canada Frequency of use will vary from visa office to visa office, as some will find in their caseloads more
situations of disconnect between the point total and establishment prospects than will others. The
fact that the applicant “almost attained” a pass mark is not, in itself, grounds to recommend the
use of substituted evaluation. Rather, the officer needs to identify and document the facts
demonstrating that the points awarded are not a sufficient indicator of the applicant's ability to
become economically established in Canada.
For legal clarity, officers should employ the terms used in legislation, such as “substituted
evaluation” or “ability to become economically established.”
If an officer decides to use
substituted evaluation when …
Then the officer will …
the applicant did meet the pass
mark (i.e., negative substituted
evaluation)
• communicate their concerns to the applicant and provide
sufficient opportunity to the applicant to respond to these
concerns, through correspondence or an interview;
• obtain written concurrence from a designated officer.
the applicant did not meet the pass
mark (i.e., positive substituted
evaluation)
• obtain written concurrence from a designated officer.
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 IRPA in a range of situations involving sufficiently
compelling circumstances.
Substituted evaluation cannot be used to override:
• a refusal due to insufficient funds [R76(3)]
• a failure to meet the definition of a skilled worker as outlined in R75. R75(3) clearly states that
a failure to meet the requirements of a skilled worker as outlined in R75(2) will result in an
application being refused
• a failure to meet the Ministerial Instructions
Federal Court case law indicates that if an applicant or their representative requests orally or in
writing that the officer consider exercising these powers in the applicant’s favour, officers must
examine the circumstances. There is no requirement that an interview be conducted in all cases
when the applicant did not make a compelling case for substituted evaluation. If officers do not
consider substituted evaluation appropriate in the circumstances, they should indicate this in file
notes and in the refusal letter. Officers do not need the concurrence of the designated officer to
deny requests for the use of positive substituted evaluation.
