The Federal Court dismissed an application for judicial review by an Indian citizen who sought to overturn the refusal of his work permit application by an Immigration, Refugees and Citizenship Canada officer.
Justice Southcott concluded that the officer’s decision was reasonable, particularly regarding the applicant’s failure to provide satisfactory proof of proficiency in the English language — a requirement for the employment position he was applying for in Canada.
The case centred on the applicant’s attempt to secure a work permit under the Temporary Foreign Worker Program to work as a cook at Fresh Market Restaurant in Mississauga, Ont. The application was supported by a Labour Market Impact Assessment (LMIA) indicating that verbal and written English were necessary skills for the position.
On Sept. 28, 2023, the immigration officer refused the application, stating concerns under paragraph 200(1)(b) of the Immigration and Refugee Protection Regulations (IRPR), which mandates that a foreign national must leave Canada by the end of the authorized period of stay. The officer was not satisfied that the applicant’s purpose was consistent with a temporary stay, given the details provided.
‘Concerns’ about English language skills
In the Global Case Management System (GCMS) notes, the officer elaborated: “I have concerns regarding the applicant’s English language skills which are also listed as a requirement for the position on the LMIA. While he does provide secondary school transcript that indicates he took an English course, it is unclear what was taught and if listening and speaking skills were tested. Further, it is old and does not reflect his current proficiency in the language. Therefore, it is unclear as to the actual level of English the applicant has. Satisfactory proof of English proficiency not provided.”
The officer also questioned the applicant’s qualifications and experience. The LMIA required completion of a three-year apprenticeship program for cooks, completion of a college or other program in cooking, or several years of commercial cooking experience.
The officer noted: “PA does not have any of these educational credentials. Just a single employment letter provided for employment in India and that has been recently issued. Certain documents on file are not in English or French. I have not considered them. I am not satisfied that he has several years of experience in commercial cooking. Overall, I am not satisfied that the applicant has sufficient ability to perform the duties of the position offered in Canada. He does not meet job requirements.”
Cook challenges ruling
Challenging the decision, the applicant argued that the officer erred in assessing his English language proficiency and his experience in commercial cooking. He contended that his secondary school documents demonstrated completion of schooling in English and that the officer should have recognized this. His counsel noted that The Assembly of God Church School, where he studied, is a missionary school with English as the medium of instruction.
The applicant attempted to introduce additional evidence — a public article about the school — to support his claim. However, Justice Southcott agreed with the respondent that this exhibit was inadmissible: “It is trite law that, with limited exceptions, judicial review of administrative decision-making is to be conducted based on the record that was before the decision-maker.”
The court found the officer’s conclusion on language proficiency to be reasonable. “There is nothing in these documents or elsewhere in the applicant’s evidence or submissions to the Officer indicating that the language of instruction of the school was English,” Justice Southcott stated. He added that while it was possible to infer from the documents that the school might be English-language, “in the absence of anything more explicit in the record before the Officer… it was not unreasonable for the Officer not to conclude that the Applicant had undertaken his secondary schooling in English.”
Intention to leave Canada
Regarding the applicant’s argument about his intention to leave Canada, he cited Murai v. Canada (Minister of Citizenship and Immigration), 2006 FC 186, asserting that the officer applied an incorrect test by not considering whether he would stay in Canada illegally. Justice Southcott dismissed this claim, stating, “I do not regard Murai as suggesting that it is an error for a visa officer to employ the language that is found in the Decision, i.e., assessing whether a person will leave Canada by the end of the period authorized for their stay.”
The judge emphasized that the officer’s concern was based on the applicant not meeting the job requirements, particularly language proficiency, which is crucial for the position offered. “Absent satisfactory evidence that the Applicant was able to meet the requirements of his intended employment, the Applicant had not established that he would leave Canada at the end of the period authorized for his stay as required by paragraph 200(1)(b) of the IRPR,” Justice Southcott wrote.
The court did not need to address the procedural fairness arguments related to the applicant’s experience since the finding on language proficiency was determinative. “As such, even if the Applicant’s arguments were to undermine the reasonableness of the Officer’s analysis of his culinary experience, this would not undermine the reasonableness of the Decision as a whole,” the judge concluded.
For more information, see Hou v. Canada (Citizenship and Immigration), 2024 FC 1938 (CanLII).
