Federal court reverses IRCC work permit refusals based on language ability

Julia Hornstein
Published: November 3, 2023

Two recent cases before the Federal Court of Canada dealt with work permit applications where an Immigration, Refugees and Citizenship Canada (IRCC) officer denied the application based on the applicant's language ability.

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In the first case, the applicant, Mehri Hosseinibay, was a citizen of Iran who sought a judicial review of a visa officer’s decision to refuse her work permit application under the Temporary Foreign Worker Program (TFWP).

Mehri applied to work as a Construction Project Coordinator for a landscaping company and her employer obtained a positive Labour Market Impact Assessment (LMIA) for the position. However, her work permit application was refused on the grounds that she had not demonstrated that she could perform the work based on her language proficiency.

The court stated that it was unclear how the officer determined that she did not have the necessary language skills for the job. There was no language requirement for the position. In addition, although not required, Mehri provided a copy of her IELTS English language test results indicating she was a modest or intermediate English speaker. Finally, her employer had indicated that she met the requirements for the job.

The court concluded that the officer’s decision to refuse her visa was unreasonable since he did not explain nor justify how the evidence provided by Mehri proved that she could not perform her job.

In the second case, the applicant, Santokh Singh, was an Indian citizen who had been working as a farm labourer. He had received and accepted a job offer from an employer in British Columbia under the title “farm worker”. He then also applied for a work permit under the TFWP.

The job offer had no formal education requirements and the duties required by the job involved operating farm machinery and equipment, examining produce for quality, preparing produce for market and reporting to and following the directions of a farm supervisor.

The visa officer sent Santokh a procedural fairness letter stating that his application did not contain sufficient evidence to demonstrate that the applicant’s language abilities would allow him to complete these job duties. Specifically, the letter noted that the job required a level of reading and comprehension in how to operate machinery and knowing safety procedures.

In response, Santokh provided various supporting documentation to demonstrate his English language proficiency. This included proof that he completed a diploma in software application in English, a certificate from his high school and college where the main language of instruction was English and where he had a good understanding of basic reading and writing in English. Santokh also provided a letter of support from a local business owner acknowledging that the applicant had all the basic knowledge of maintenance of farm equipment. However, the application was refused.

The court ultimately ruled that the officer’s decision was neither intelligible nor reasonable when read in conjunction with the evidence that the applicant provided.

The implication of both these cases is that visa officers will consider an applicant’s language ability even if there were no language requirements for the position and the applicant was deemed qualified for the job by the employer.

Therefore, it is important to provide sufficient evidence in your application that you are proficient in English or French when applying for a work permit, even though it may not be required or may seem unnecessary.

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