Last Updated on July 14, 2021 by Steven Meurrens
Regulation 200(3)(a) of the Immigration and Refugee Protection Regulations 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.
An issue that is becomming increasingly common is whether someone has sufficient language ability to perform the work sought.
In Singh v. CAnada (Citizenship and Immigration), 2021 FC 638 Justice Bell set aside the refusal of a work permit application for a truck driver. There, an officer wrote “I have concerns regarding the applicant’s English language skills which are also listed as a requirement for the position on the LMO. While the applicant has an overall band score of 5.5. on the IELTS, I note that he only received a score of 4.5 in reading and a 5 in speaking. Although the LMIA does not explicitly state a minimum required IELTS score for this position, I note that the British Council classifies students at this band level as being a “Limited user [whose] basic competence is limited to familiar situations. [They] frequently show problems in understanding and expression. [They] are not able to use complex language.”
Justice Bell determined that relying solely on the IELTS description was improper. He wrote:
The visa officer does not mention the Canadian Language Benchmark, the prospective employer’s declared language requirement (level 4 of the Canadian Language Benchmark), nor does he or she mention the fact that the prospective employer qualified Mr. Singh’s language skills as excellent. Finally, I note that the British Council referred to students’ abilities. It clearly did not refer to an adult’s language abilities in his or her own trade or calling.
I am of the view the visa officer fixated on Mr. Singh’s IELTS test results and British Council comparisons. He failed to consider the very real and probative evidence before him. That evidence included; i. the employer’s language requirements; ii. the employer’s assessment of language ability; iii. the Canadian Language Benchmark. iv. the fact no minimum IELTS result was required; and, v. the detailed comparison between the IELTS and the CLB provided by the employer.