Regulation 200(3)(a) provides that an officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought.
Procedural Fairness
In jurisprudence on applications for skilled worker class permits it has also been held that if the officer has concerns about the veracity of documents, procedural fairness demands that the officer make further inquires. However, an officer is generally not under a duty to inform a skilled worker class permit applicant about his concerns when they arise directly from the requirements of the legislation or regulations. As the Federal Court of Canada noted in Li v. Canada (Citizenship and Immigration), 2012 FC 484, the same applies in work permit applications.
As the court held in Kumar v. Canada (Citizenship and Immigration), 2020 FC 935, because of the legislative requirement that officers not issue work permits to foreign nationals if they believe that the foreign national is unable to perform the work sought, then even if Immigration, Refugees and Citizenship Canada’s online checklist does not specifically require documents such as diplomas, academic transcripts, or certificates of English proficiency, an officer can refuse an application if they are not provided when requested by an officer.
On the specific issue of language proficiency, officers can expect more than an English language application and cover letter to verify an applicant’s ability to speak and write in English, where there are reasonable grounds to believe that such language skills are necessary to perform the work sought.
LMIAs and AEOs Not Binding
The Federal Court has ruled that a visa officer is entitled to override an opinion by the Department of Human Resources and Skills Development (“Service Canada“) that an arranged offer of employment is genuine.
In Ghazeleh v. Canada (Citizenship and Immigration), the Court had to determine whether a visa officer erred in awarding a Federal Skilled Worker Class applicant zero points for Arranged Employment because the officer was not satisfied by Service Canada’s Arranged Employment Opinion (“AEO“). Specifically, the officer had concerns with the employer’s ability to employ the applicant as the company was losing money. The applicant was unable to alleviate the officer of his concerns.
At Federal Court, the applicant’s lawyer argued that the visa officer erred in overriding the AEO.
The Court, however, disagreed, and stated that Service Canada’s opinion is only the first step in the validation of an employment offer, and does not end the inquiry. Citing Bellido v. Canada (Minister of Citizenship and Immigration), the Court also noted:
HRDC validation is not, as the Applicant submits, sufficient evidence of arranged employment. Such validation does not remove the obligation of the Visa Officer to assess whether the Applicant is able to perform the job described in the validation.
In this case, the visa officer was not satisfied that the applicant could perform the work sought because the officer concluded that the employer’s financial circumstances meant that it could not even pay the applicant to do work.
The Court described the division of responsibilities between Citizenship and Immigration Canada and Service Canada as being:
It is the Minister of Citizenship and Immigration who is accountable, legally, for the decision to grant a visa. To conclude that he was bound by the HRSDC opinion would be either an impermissible delegation of the Minister’s statutory obligations under the IRPA or a fettering of the Minister’s discretion. To conclude, it is the Minister of Citizenship and Immigration who makes the decision, not the Minister of HRSDC. HRSDC rather, offers an opinion.
Truck Drivers
Since 2018 the Federal Court of Canada has adopted an increasingly strict approach in assessing whether prospective truck drivers can perform the work sought.
In Sangha v. Canada (Citizenship and Immigration), 2020 FC 95 Justice Russel stated that “safety must surely be a pramount requirement for competence” in the case of long-haul truck drivers, and that applicants must accordingly provide evidence of compliance.
In Patel v. Canada (Citizenship and Immigration), 2021 FC 573 Justice Brown further determined that it is reasonable for an officer to consider the issue of an applicant’s ability to drive safely on Canadian roads when assessing the overall suitability of an applicant to become a Canadian long-haul truck driver, even if visa office checklists do not require this. There, the applicant had provided an Extract of Driving License which only listed driving licenses and did not list whether an individual had a history of any infractions or safety violations.
In Singh v. Canada (Citizenship and Immigration), 2022 FC 80, Justice Pamel stated that it was important that truck driver applicants provide driving records which clearly state whether they have ever had driving infractions so that officers do not possibly misinterpret the record as indicating whether there are any current or outstanding infractions.
Mr. Singh argues that the Officer’s requirement of evidence of the history of traffic violations is bizarre because the UAE Traffic Clearance Certificate itself indicates that there are “no fines recorded on the federal traffic & license program” in relation to Mr. Singh. In other words, the UAE Traffic Clearance Certificate confirmed that Mr. Singh had no history of traffic violations in the UAE. However, as I discussed with Mr. Singh’s counsel during the hearing, it is not clear from the UAE Traffic Clearance Certificate whether it only lists outstanding traffic violations as opposed to Mr. Singh’s entire violation history, including traffic violations that have been paid. There is no evidence as to how I should read the statement on the UAE Traffic Clearance Certificate, and given that the Officer was fully aware of and specifically mentions this document in the Decision, I have no reason to believe that the Officer understood the UAE Traffic Clearance Certificate otherwise than to mean that Mr. Singh had no current outstanding traffic violations. That is the only interpretation that makes sense given the manner in which the Officer wrote his/her decision.
There have also been contradictory opinions on whether the difference in weather conditions between Dubai and Canada is a relevant factor. In Singh v. Canada (Citizenship and Immigration), 2021 FC 1107, Madam Justice McDonald stated:
Likewise, here the job offer does not reference the requirement to ““read driving manuals” “or dictate a minimum IELTS result required. Furthermore, the Officer’s comments on the difference in weather and driving conditions between Canada and UAE, appear to be unrelated to the job requirements. In any event, the Officer was not in a position to assess the Applicant’s skills and ability to drive in Canadian weather conditions (Chen v Canada (Minister of Citizenship and Immigration), 2000 CanLII 15495 (FC)). That responsibility will fall to the employer.
In Singh v. Canada (Citizenship and Immigration), 2021 FC 1164, Madam Justice Pallota stated:
Different weather and terrain affects road conditions, and it was not unreasonable for the Officer to note the differences between Canada and the UAE in this regard.
English Language
In Nandha v. Canada (Citizenship and Immigration), 2024 FC 1694, Justice Little upheld the refusal of a work permit for an administrative assistant because the applicant only provided highschool marks showing that they took English. Justice Little wrote:
[20] The information before the officer consisted of a high school “Intermediate Exam Marks Sheet” showing that the applicant had done an English course in 2001 and a separate page confirming that she had passed the examination in English in March/April of that year. As the respondent noted at the hearing, there was nothing to assist the officer to interpret the applicant’s mark of 38 out of 100 in the English course: see Iqbal v. Canada (Citizenship and Immigration), 2022 FC 727, at para 18.
[21] The applicant did not submit any other evidence of her English language ability for the proposed job. For example:
a)There was no letter from her prospective employer in Canada concerning the English language proficiency required for the position, nor anything about that employer’s assessment of the applicant’s proficiency: see Iqbal, at para 19.
b)The letter from the applicant’s former employer in India, while written in English, did not address whether the applicant had performed her prior duties in English.
c)Despite the applicant’s submissions, there was no information before the officer that the applicant had 12 years of English language instruction during her schooling or that the applicant’s English skills were assessed after her arrival in Canada.
d)Finally, the present application also did not include a cover letter or submissions from the applicant or anyone representing her.
No Experience
Even where no experience is required for a position employers should state why they want to hire a foreign worker with minimal experience. In Marsoniya v. Canada (Citizenship and Immigration), 2024 FC 660, Madam Justice Whyte Nowak wrote:
The Applicant argues that his previous duties were irrelevant as they were in an unrelated field and the LMIA did not state any prior work experience was required.
The Officer was aware that the LMIA did not list the need for any previous work experience, however, he stated he was not satisfied that the Applicant had sufficiently demonstrated his ability to perform the duties and functions required of the job given the demanding conditions listed in the LMIA. The Officer provided the following rationale:
“While I note that the LMIA requires no specific education or training or experience requirements, however, when a Canadian employer is turning his attention overseas to hire a foreign worker as they have been unable to find a suitable candidate within Canada, it becomes even more pronounced that the prospective employee is able to perform the duties of the position effortlessly and efficiently.”
The Officer’s note reveals a rational chain of analysis that is justified on the facts and the applicable regulatory scheme by a decision-maker with specialized expertise.
Mandatory Experience
In Singh v. Canada (Citizenship and Immigration), 2024 FC 1165, Justice Battista ruled that it is unreasonable for a visa officer to turn a non-mandatory requirement on the NOC page into a mandatory requirement.
If you have any questions about the above, please e-mail me at steven.meurrens@larlee.com