PROCEDURAL FAIRNESS SERIES (2): PROVINCIAL NOMINATION
In the previous article, we stated that the procedural fairness in immigration law is an opportunity for the visa officer to give the applicant an explanation, so that the applicant can dispel the concerns of the visa officer. This letter of opportunity to explain is called the Procedural Fairness Letter (PFL). In the province’s nominated immigration program, procedural fairness has a special manifestation.
The province nominates immigrants, that is, the applicant meets the immigration requirements of a certain province. The immigration materials are first handed over to the provincial immigration department. The provincial immigration department considers that the applicant meets the conditions and sends a nomination letter. The applicant then submits the nomination letter and other forms to the Federal Immigration Service CIC. The Federal Office of Immigration does not measure whether the applicant meets the selection criteria, but only examines the medical examination, criminal record, and false investigation of the security investigation.
Provincial nominations are divided into Quebec and other provinces. After issuing CSQ in Quebec, the federal government can only conduct investigations on medical examinations, criminal records, and security. After nominations from other provinces, the federal government can also consider the following three aspects:
The officer has reason to believe that the applicant does not intend to live in the province that has nominated them;
The officer has reason to believe that the applicant is unlikely to be able to successfully establish economically in Canada;
The officer has reason to believe that the applicant is participating in, or intends to participate in, a passive investment or an immigration-linked investment scheme.
To use the above three reasons for refusal, the federal government needs to follow the following procedures:
- First, the visa officer must have some evidence and cannot blame the applicant out of thin air.
- The visa officer may then send an email to the applicant, display the evidence held by the visa officer, and give the applicant an opportunity to explain, as well as notify the nominated province.
- If the visa officer intends to refuse the applicant afterwards, the second visa officer is required to agree with him. The names of the two visa officers are recorded in the GCMS system.
If a medical examination, criminal record, or security investigation is refused, the federal government does not need to notify the nominated province, but if the visa is refused with a misrepresentation, the federal need to copy the PFL to the nominated province and let the applicant know that they have done so. We will talk about in the following series that false statements must be relevant and substantial, otherwise they cannot constitute false statements.
If the applicant already has a nomination letter, it is difficult to prove that his false statement at the federal stage is material. And it is possible that the applicant lied during the provincial nomination period and did not lie at the federal stage. But this does not mean that there is no way for the federal government. The immigration officer’s killer is to let the nominated provinces cancel the nomination letter.
Let’s take some examples.
However, the Ontario Immigration Department cares about the applicant’s willingness to live. They want applicants in the Master’s category to live in Ontario while waiting for immigration, and it is best to work. We saw in the forum that there were many examples of submitting the provincial nomination application and leaving it by the Immigration Department to call back to Ontario. The next question is, if you have been nominated and left Ontario, will the federal government refuse directly?
No, because immigration to Canada does not require applicants to live or live in the same place, so there will be a “short boarding”. So if the provincial government does not cancel the nomination, the federal government has no reason to refuse. Usually, after the Ontario nomination is issued, the applicant is not investigated. However, last year, the Quality Assurance stage in Ontario found that some people returned after receiving the nomination. For the applicant who did not give a reasonable explanation, Ontario made the decision to cancel the nomination. However, one of our customers who were assigned to Hong Kong was spared: although she has returned, she is still employed by the Ontario company, and her monthly salary is correct.
A similar situation applies to most provincial nominees in the “Employer’s Guarantee” category. After the submission to the federal government, the federal government will not refuse to sign because of the departure. However, if the province finds it, it may suspect that the original guarantee was false or the applicant did not. The nomination is cancelled in accordance with the provincial nomination requirements. We usually advise applicants to resign after they have obtained permanent resident status.
In Kikeshian v. Canada, 2011 FC 658, the applicant received a provincial nomination through the Saskatchewan investment project but has been living in Toronto. The federal government issued a PFL to the applicant, suspecting that he did not intend to live in Saskatchewan. The applicant’s reply is that he is 77 years old and lives in his own nephew. His nephew is working for a member of parliament. It is adventurous to resign and move to Saskatchewan. The applicant and the nephew promised that once the applicant has obtained permanent resident status, they will move their family to Saskatchewan. In the end, the Federation did not believe that the applicant was able to independently refuse the visa in Canada. The court found the applicant to win the case. The reasons were as follows:
Although the applicant’s willingness to live in the nominated province is likely to be related to his ability to be independent in Canada, they are not equivalent. The visa officer knows this difference because his PFL refers to immigration procedures 87(2)(b) and the refusal letter refers to 87(3). What happened to this? Apparently because the applicant successfully answered the visa officer’s question. However, the applicant’s answer showed that his dependence on the nephew created a new problem. Because this is a different issue, the visa officer is obliged to consult the nominated province on this new issue, and the visa officer does not. The nominated provinces and applicants are likely to successfully answer questions about economic independence, just as they answered questions about residency intentions, but they were not offered such an opportunity. The visa officer did not fulfill his obligations before the refusal, which is fatal for the refusal. So I approved this judicial review, the immigration application must be re-examined by another visa officer and if the visa officer’s problem persists, he must give Saskatchewan and the applicant a chance to respond.
In the case of Hui v. Canada, 2011 FC 1098, the applicant claimed to be working in a company in Dalian, the visa officer called the referee, the recommender confirmed the applicant’s work but the referees had some relationship with the applicant. . The visa officer then arranged for the Anti-Fraud Unit to conduct a site visit. The restaurant’s head chef and most of the staff said they did not know the applicant, and only one employee expressed their understanding. In this case, we can see that the visa officer did not violate the procedural fairness. They provided the evidence to the applicant, gave the applicant an opportunity to explain, and copied the nominated province. Although the applicant later wrote a long-form reply to the visa officer, but did not satisfy the visa officer – after the case was brought to the court, the judge also thought that the visa officer’s decision was not inappropriate, we took a copy of the visa officer’s notes:
We looked at the respondent’s reply, but we are not satisfied. The letter of explanation provided information on why the applicant temporarily left from September 2009 to April 2010, but it was not credible to leave when we investigated. What is even less credible is that at the time of our investigation, only one employee knew the applicant, even though the applicant had been working there until September 2009.
The applicant provided further information but did not dispel our concerns. I don’t think that continuing to verify the authenticity of these documents will dispel my concerns, because the applicant is ready to conduct a telephone survey, and it may be fooled to continue the field investigation. In summary, I do not intend to take these documents into consideration, nor do I intend to take into account the information obtained in the telephone survey.
I noticed that it was also confirmed by the applicant that no paper material was retained to prove the applicant’s work experience from 2001 to the present. The investigating agency told us that this is unusual, and that no work record is another concern for us. The materials provided by the applicant may prove that the applicant has a certain connection with the restaurant, but it does not prove the length of his work, nor can it prove the chef experience she declared.
In the Ijaz v. Canada, 2014 FC 920 case, the applicant received a Saskatchewan nomination through a relative plus, but the federal opinion found that the applicant could not achieve economic success in Canada. The current position of the applicant is a teacher, and the future work is intended to be a cashier. This was originally a part of the application materials, but it was caught by the visa officer – because the applicant’s language score is very bad, even if it does not reach CLB 4, whether it is a teacher or a cashier, it is not competent. We have seen this expression awkward. Even if the applicant says that he wants to wash the dishes, he may be able to achieve economic success. But the dream of becoming a cashier has become a hindrance to her immigration. The visa officer followed the procedural fairness in this case, and the applicant also responded, but we now seem that the applicant’s reply is not good enough, so the following judgment was made:
I looked at all the records and there was no indication that the visa officer had neglected any material submitted by the applicant. The visa officer considered the help that the applicant’s family was about to provide but it was not enough to overcome the applicant’s lack of language. The visa officer also fully explained why he emphasized the importance of language skills to economic self-reliance.
The visa officer also noted that the provincial government issued nominations indicating that the provincial government has already considered that the applicant is about to gain economic independence and will also contribute to the provincial government’s economy.
The only factor in language proficiency that has been drawn up is that the visa officer does not consider other factors.
The visa officer pointed out that if the applicant can prove that he can find a job in Saskatchewan, then all other factors can be ruled out. However, as the defendant’s lawyer mentioned, the applicant did not provide a job offer. So the visa officer’s decision that the applicant may not be able to find a job in Saskatchewan is not unreasonable.
The IELTS score provided by the applicant proves that his English ability is at a “medium” level, which means that he has some knowledge of English but still may make mistakes. The visa officer believes that as a cashier, applicants should have good English proficiency and customer communication, and such a decision is not inappropriate.
In general, the applicant did not intend to continue to be a teacher, but she did not come up with a job offer for a cashier position, she only had a medium level of English. Therefore, the visa officer believes that the applicant cannot be independent in Canada, and it is not difficult to make such a decision.
The plaintiff’s lawyer did not convince my visa officer to make any mistakes. The applicant may be disappointed, and she may wish the court to re-measure all the factors and give her a favorable judgment, which the court cannot do. I think the visa officer has reasonably measured all the factors.