Quota of 1000 on the Post June 26 2010 Occupation List for Skilled Workers to Canada and the Skilled Worker / Investor Cases received after June 26 2010.

By Author: Admin | July 19, 2010

Fears that the one thousand (1000) applicant cap on each occupation listed by the Minister of Immigration would be filled immediately are likely untrue (the cap being imposed by Canada’s Immigration Minister on June 26 2010).  It is very true that 1000 applicants constitutes a relatively small number given the fact that the number of skilled worker applicants admitted to Canada in the past four years was in the range of 40,000 to 52,000.

However, the immigration processing office in Sydney Nova Scotia will now require virtually every document at the beginning of the process.  This is in contrast to the practice of the immigration department between November 2008 and June 25, 2010 where only the application forms and the government fee where required at Sydney for a federal skilled worker application.

The significance of requiring all the documents before the case is lodged at Sydney Nova Scotia is that it is difficult to obtain all documents such as police records where a skilled worker has lived for more than six (6) months, completing a language test no matter what the person’s level of skill in the English language, and providing all work experience documents, among other things.  As a consequence, there is a higher probability that the Sydney Nova Scotia Visa office will return files which are missing documents, thus creating a longer timeframe before the 1000 cap per occupation is reached.

Skilled Worker Cases and Investor Cases received after June 26 2010

On June 26th the Ministerial Instructions (MIs) were updated and changes were brought in which affected processing of Federal Skilled Worker applications and Federal Immigrant Investor Class applications among others.

In the case of Federal Skilled Worker applications, the changes (including the occupations on the demand list) applied to applications received by the Centralized Intake Office in Sydney on or after June 26, 2010.

In the case of Federal Immigrant Investor class applications, the changes applied to all applications unless they were post-marked or received by the designated CIC office before June 26, 2010.  In other words, disparate treatment is given to skill worker cases, resulting in rejected applications where the job duties were not on the post-June 26 occupation list.   By contrast, investor applications that were postmarked before June 26, 2010 shall still be assessed under the previous iteration of investor criteria.

Does the above constitute unfair treatment for skilled worker applicants?  It does.  Is this unfair treatment legal?  Unfortunately, the case law seems to indicate that this treatment by the Minister is completely legal.

The case of Sanghe v. Canada (Minister of Employment and Immigration) (1987), 2 Imm. L.R. (2d) 75, concluded that an application for permanent residence was made when the documents were received.  Similarly, the recent case of Katherine Salahova  v. M.C.I, (IMM-1525-09 2010 FC 352 March 31, 2010) also states that an application is made not when it is simply mailed, but rather, when it was received:

[…] Ms. Salahova’s position is that she “made” the application when she mailed it on February 25. […][I]t was only received on March 3. The question then is whether the application was “made on or after February 27, 2008” […], within the meaning of Bill C-50. […][Her] application was not “made” within time. […][She] argued in the alternative that the result was procedurally unfair. […] Parliament was constitutionally empowered to do what it did, as was the Minister under Section 87.3 of IRPA. […] The doctrine of legitimate expectations is a procedural doctrine which has its source in common law. As such it does not create substantive rights and cannot be used to counter Parliament’s clearly expressed intent.

Applicants interested in the investor category may wish to file an application with the Québec immigration department as soon as possible, as their criteria may soon match the proposed Federal investor criteria, as early as September 2010.  Skilled worker applicant’s whose applications were based on the pre-June 26 2010 criteria and received after June 26 2010 are out of luck.

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