Wijayansinghe v. Canada (Citizenship and Immigration), 2015 FC 811 : Federal Skilled Worker Refusal Upheld Despite Passing the Points Threshold

The Federal Court reviewed the refusal of a Federal Skilled Worker application made by a physiotherapist from Sri Lanka.

The applicant had obtained enough points to qualify under the Federal Skilled Worker system. However, the visa officer was still not satisfied that she would be able to successfully establish herself economically in Canada.

The officer was concerned that she did not meet the education and licensing requirements to work as a physiotherapist in Canada and had done very little research into alternative employment or settlement plans.

The Federal Court upheld the refusal.

Key Principle

Meeting the minimum Federal Skilled Worker points threshold does not always guarantee approval.

Under the rules that applied at the time, a visa officer could use a substituted evaluation where the points total did not accurately reflect whether the applicant was likely to become economically established in Canada.

An officer could consider whether the applicant was realistically able to work in their intended profession, along with broader factors such as settlement planning, employment research, and alternative career options.

Background

The applicant was a physiotherapist from Sri Lanka who had worked for the Ministry of Health since 2005.

She applied for permanent residence under the Federal Skilled Worker class.

A preliminary review indicated that she appeared to meet the requirements for work experience, language, and education.

She was later interviewed by a visa officer.

During the interview, the officer became concerned about her ability to successfully establish herself in Canada.

The applicant did not appear to meet the education and licensing requirements to work as a physiotherapist in Canada. The officer also noted that she had done very little research about employment or settlement opportunities and had not developed a clear alternative plan.

The officer later sent a procedural fairness letter asking her to provide a settlement plan and explain how she would overcome these issues.

No response was received.

The officer therefore used a negative substituted evaluation and refused the application even though the applicant had obtained the minimum required points.

Court Findings

The Federal Court first considered whether the applicant had been given a fair opportunity to respond to the officer’s concerns.

The applicant argued that she had not been specifically told during the interview that the officer was considering a negative substituted evaluation.

The Court found that this did not amount to procedural unfairness.

The important question was whether she had been told about the actual concern, namely whether she would be able to successfully establish herself economically in Canada.

The evidence showed that the officer had discussed those concerns with her during the interview.

The Court explained that an officer does not necessarily have to use the exact legal words “substituted evaluation” as long as the applicant understands the substance of the concern and has an opportunity to respond.

The Court also considered the applicant’s argument that she and her consultant had never received the procedural fairness letter.

The Court found that the visa office had sufficient evidence to show that the letter had been correctly sent to the address provided.

Once immigration authorities establish that a communication was properly sent, the risk of non-delivery generally falls on the applicant unless there is evidence of a communication failure.

Finally, the Court upheld the officer’s negative substituted evaluation.

The Court agreed that the applicant did not have to prove that she would necessarily work as a physiotherapist in Canada.

However, whether she could work in her professional field was still a relevant factor because those were the skills and experience she was likely to rely upon after arriving.

More importantly, the officer did not rely only on the licensing issue. The officer also considered the applicant’s lack of employment research, lack of settlement planning, and failure to explain alternative ways she could establish herself economically.

The Court therefore found the decision reasonable.

Outcome

The Federal Court dismissed the application for judicial review and upheld the refusal.

The case shows that qualifying under a points system does not necessarily end the assessment. Applicants should also be prepared to explain how they realistically plan to establish themselves economically in Canada, particularly where their occupation is regulated or Canadian licensing requirements may prevent them from immediately working in their field.

A strong settlement plan, research into licensing requirements, alternative employment options, and a clear understanding of the Canadian labour market can therefore be important.

Historical Note: This case was decided under the Federal Skilled Worker rules and substituted evaluation provisions that applied at the time. The current Express Entry and Federal Skilled Worker framework has since changed, so present-day applications must be assessed under the current legislation and program rules.

Case Citation:

Wijayansinghe v. Canada (Citizenship and Immigration), 2015 FC 811 CanLII