The
IRP Regulations preserve the ability of an officer, with the concurrence
of a supervisor (described in the Regulations as a "second
officer"), to exercise discretion when they believe that the
total points awarded do not properly reflect an applicant's ability
to establish in Canada from an economic perspective. A selection
system can be designed to reflect the factors that would lead to
economic success for the majority of applicants. It cannot, however,
reflect the specific personalized elements that might lead to success
or failure for every applicant. Therefore, the continuation of discretion
has been considered to be desirable. Discretion can be either "positive,"
whereby an officer believes that a prospective immigrant who has
not received sufficient selection points should nevertheless be
accepted, or "negative," whereby an officer believes that
a prospective immigrant who has received sufficient points should,
nevertheless, be refused.
Under the proposed new Regulations, applicants who fail
to score the minimum points required, may still be approved on the
basis of "Positive Discretion". This means that
visa officers have the power to approve applicants with less
points than the Pass Mark, if there are good reasons to believe
they will be able to successfully establish themselves in Canada. The same guidelines apply for applicants who make
the minimum score. Visa Officers may refuse such applicants if they
feel that they are not suitable and will not successfully establish
themselves in Canada (despite achieving the required pass mark).
It is clear that Immigration Officers will be able to exercise a broad
range of discretionary powers. Many critics of the legislation
believe Immigration/Visa Officers have been given too much power. |
