please read the link:i think it would help
regards
imu
summary is taken from web resources: immigration.ca
The Canadian federal skilled worker program is geared to attracting skilled workers who are able to demonstrate an ability to become economically established in Canada. Under a points-based process, applicants are assessed under six factors and numerous sub factors which are designed to gauge, in theory, the likelihood of a candidate's prospects of settlement in Canada.
It is readily acknowledged by the Canadian immigration authorities however that the points based assessment does not always accurately measure the likelihood of successful economic integration. Immigration officers are therefore afforded a wide discretionary authority to override the points' assessment and exercise discretion to accept or refuse a candidate irrespective of the points awarded. The legal title under which this discretionary authority is exercised is called a substituted evaluation or exercising positive or negative substituted evaluation.
The Two Sides of Substituted Evaluation: Positive and Negative Discretion
Through this discretionary authority, a visa officer, after concluding that an applicant is likely to succeed economically in Canada, may admit the applicant regardless of the fact that the applicant received less than the required 67 point threshold currently in place. This is commonly referred to as exercising positive substituted evaluation.
Conversely, an immigration officer may also exercise negative discretion or negative substituted evaluation. As one might imagine, this can occur where the immigration officer believes that an applicant is not likely to successfully integrate into Canada even though the applicant may have received 67 or more points under the applicable selection criteria.
In the case of exercising negative discretion, an officer must provide sufficient opportunity for an applicant to respond to their intention to exercising substituted evaluation either through correspondence or through an interview. the officer must also obtain the written concurrence from another designated immigration officer.
In the period between 1997 and 2002, substituted evaluation was used in 2.3% of all cases of skilled worker applications. Of this figure, positive discretion was used an average of 16 times more often than negative discretion. However, this frequency and proportion between positive and negative discretion is not part of any public policy directive. That is to say, the government does not officially outline how its immigration officers around the world should proceed when using either form of substituted evaluation. This relationship of 16 times more positive cases than negative was not written in stone, and can very easily be reversed.
That said, substituted evaluation can be seen as a very wide discretionary power that can be calibrated differently and used to respond quickly to varying circumstances and developing issues within the scope of the skilled worker immigration program.
A New Trend Towards Negative Discretion? Older Applicants Take Note
Owing to the growing backlog of pending applications at high volume missions abroad, we may currently be witnessing a new direction with the use of the substituted evaluation tool available to CIC officers. Wait times at certain missions are growing, as is the size of the backlog of applications for people trying to immigrate to Canada under this program. In response, the government could raise the pass mark needed for immigration to Canada from 67 to, say, 75, thereby effectively closing the door on many new applicants in order to deal with the backlog. Alternatively, they could increase the use of negative discretions for those people at or barely over the 67 point threshold. In practical terms however, this approach would require increased use of resources (due to the requirement of allowing applicants to respond to the officer's concerns) to apply on a larger scale than is currently being applied.
It is not clear if this is a developing practice at CIC. But there are trends that those working closely in the immigration system have noticed. For example, the use of positive substituted evaluation is being used much less frequently than in the past. The instances where it is being exercised are increasingly limited to CIC immigration missions around the world that are having difficulty in reaching their annual target levels as a means to preserving their existing operating budgets
Negative discretion, on the other hand, is occurring more and more frequently. More precisely, there is a growing trend that is particularly being directed towards older applicants. Applicants who are not in the “prime age range” (that is to say between 21 and 49 years old) and who have earned enough points under the current selection rules are often being refused through the use of substituted negative evaluations.
An investigation of CIC's CAIPS notes (the computer system used by CIC officers to document applicant's files) reveals language suggestive of this trend. More and more frequently we have observed officers writing in their CAIPS notes conclusions such as the following: “I have made this determination because [the applicant] is at a stage of his career where it would be difficult to change direction”. Of course, this stage of his career is another way of saying that the applicant is too old.
Insofar as appeals, the same criteria apply here as for any other decision in the skilled worker program; the facts of the case will not be reviewed in appeal, only if there was an error in law. That makes the threshold for a successful appeal very high and virtually non-existent for the bulk of refused applicants.
regards
imu
summary is taken from web resources: immigration.ca
The Canadian federal skilled worker program is geared to attracting skilled workers who are able to demonstrate an ability to become economically established in Canada. Under a points-based process, applicants are assessed under six factors and numerous sub factors which are designed to gauge, in theory, the likelihood of a candidate's prospects of settlement in Canada.
It is readily acknowledged by the Canadian immigration authorities however that the points based assessment does not always accurately measure the likelihood of successful economic integration. Immigration officers are therefore afforded a wide discretionary authority to override the points' assessment and exercise discretion to accept or refuse a candidate irrespective of the points awarded. The legal title under which this discretionary authority is exercised is called a substituted evaluation or exercising positive or negative substituted evaluation.
The Two Sides of Substituted Evaluation: Positive and Negative Discretion
Through this discretionary authority, a visa officer, after concluding that an applicant is likely to succeed economically in Canada, may admit the applicant regardless of the fact that the applicant received less than the required 67 point threshold currently in place. This is commonly referred to as exercising positive substituted evaluation.
Conversely, an immigration officer may also exercise negative discretion or negative substituted evaluation. As one might imagine, this can occur where the immigration officer believes that an applicant is not likely to successfully integrate into Canada even though the applicant may have received 67 or more points under the applicable selection criteria.
In the case of exercising negative discretion, an officer must provide sufficient opportunity for an applicant to respond to their intention to exercising substituted evaluation either through correspondence or through an interview. the officer must also obtain the written concurrence from another designated immigration officer.
In the period between 1997 and 2002, substituted evaluation was used in 2.3% of all cases of skilled worker applications. Of this figure, positive discretion was used an average of 16 times more often than negative discretion. However, this frequency and proportion between positive and negative discretion is not part of any public policy directive. That is to say, the government does not officially outline how its immigration officers around the world should proceed when using either form of substituted evaluation. This relationship of 16 times more positive cases than negative was not written in stone, and can very easily be reversed.
That said, substituted evaluation can be seen as a very wide discretionary power that can be calibrated differently and used to respond quickly to varying circumstances and developing issues within the scope of the skilled worker immigration program.
A New Trend Towards Negative Discretion? Older Applicants Take Note
Owing to the growing backlog of pending applications at high volume missions abroad, we may currently be witnessing a new direction with the use of the substituted evaluation tool available to CIC officers. Wait times at certain missions are growing, as is the size of the backlog of applications for people trying to immigrate to Canada under this program. In response, the government could raise the pass mark needed for immigration to Canada from 67 to, say, 75, thereby effectively closing the door on many new applicants in order to deal with the backlog. Alternatively, they could increase the use of negative discretions for those people at or barely over the 67 point threshold. In practical terms however, this approach would require increased use of resources (due to the requirement of allowing applicants to respond to the officer's concerns) to apply on a larger scale than is currently being applied.
It is not clear if this is a developing practice at CIC. But there are trends that those working closely in the immigration system have noticed. For example, the use of positive substituted evaluation is being used much less frequently than in the past. The instances where it is being exercised are increasingly limited to CIC immigration missions around the world that are having difficulty in reaching their annual target levels as a means to preserving their existing operating budgets
Negative discretion, on the other hand, is occurring more and more frequently. More precisely, there is a growing trend that is particularly being directed towards older applicants. Applicants who are not in the “prime age range” (that is to say between 21 and 49 years old) and who have earned enough points under the current selection rules are often being refused through the use of substituted negative evaluations.
An investigation of CIC's CAIPS notes (the computer system used by CIC officers to document applicant's files) reveals language suggestive of this trend. More and more frequently we have observed officers writing in their CAIPS notes conclusions such as the following: “I have made this determination because [the applicant] is at a stage of his career where it would be difficult to change direction”. Of course, this stage of his career is another way of saying that the applicant is too old.
Insofar as appeals, the same criteria apply here as for any other decision in the skilled worker program; the facts of the case will not be reviewed in appeal, only if there was an error in law. That makes the threshold for a successful appeal very high and virtually non-existent for the bulk of refused applicants.
