Docket: IMM-15638-23
Citation: 2024 FC 1852
Toronto, Ontario, November 20, 2024
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
HAI YEN NGUYEN |
Applicant |
and |
MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] The Applicant challenges a Visa Officer’s decision refusing her application for a temporary work permit.
[2] For the following brief reasons, I will dismiss this application for judicial review, as I find that the Officer’s decision, while brief, was reasonable in the circumstances.
II. FACTS
A. Facts
[3] The Applicant, Ms. Nguyen, is a citizen of Vietnam. In May 2023, she received a positive Labour Market Impact Assessment [LMIA] from Employment and Social Development Services Canada. Based on this positive LMIA, Ms. Nguyen applied for a temporary work permit under the National Occupation Classification [NOC] 85103, as a Greenhouse Worker/Cannabis Trimmer. This application was supported by an offer of employment from M&T Employment Staffing Agency Inc.
[4] In support of her application, the Applicant supplied the following:
a)Her Offer of Employment, specifying NOC Code NOC 85103 and specifying no language requirement;
b)Her positive LMIA letter; and
c)Her personal disclosure, including police clearance and medical documentation.
B. Decision under Review
[5] An Officer refused the Applicant’s application by letter dated November 8, 2023. The Officer found that the Applicant was not able to demonstrate that she would be able to adequately perform the work sought. In notes entered into the Global Case Management System [GCMS], which form part of the reasons for decision, the Officer notes, “insufficient ability in the language of the proposed employment.”
The Officer found that “oral and written English are listed as requirements”
for the job, and yet the Applicant had not submitted any language test results with the application. As a result, the Officer was not satisfied Ms. Nguyen would depart Canada at the end of her period of authorized stay and refused her application.
III. ISSUES and STANDARD OF REVIEW
[6] The sole issue for determination is whether this refusal of the Applicant’s work permit application was reasonable.
[7] The parties agree, and I concur, that the decision is reviewable on the standard of reasonableness, as articulated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].
IV. ANALYSIS
[8] The Officer’s reasons in this matter were based on two distinct, though perhaps related findings: first, that the Applicant had failed to establish that she could perform the work sought because of her lack of English language skills; and second, because the Officer was not satisfied that the Applicant would depart Canada at the end of her authorized period of stay.
[9] At the hearing into this matter, the Respondent indicated that the second of the above findings, related to the Applicant’s departure from Canada was essentially peripheral to the Officer’s core conclusion, which was that the Applicant had failed to establish that she could perform the work outlined in the job offer. I agree, and for this reason, will focus my analysis on this issue.
[10] On the question of her language skills, Ms. Nguyen points out that there is no freestanding language requirement associated with work permit applications. She also points out that neither the applicable NOC, nor the LMIA, nor her job offer make any reference to language requirements. As a result, the Applicant argues that the Officer’s statement that “oral and written English are listed as requirements”
of the job lacked sufficient justification.
[11] This is not entirely accurate. While it is true that neither the NOC, nor the job offer indicate language requirements, the LMIA does, providing as follows on a document entitled “Employment Details”
:
Verbal Language Requirements: English
Written Language Requirements: English
[12] I also note that in the Applicant’s work permit application, she indicated that she was able to communicate in English.
[13] As mentioned above, the decision that was communicated to the Applicant indicated that her application was refused for the following reason:
You were not able to demonstrate that you will be able to adequately perform the work you seek.
[14] In support of that conclusion, the GCMS entry is as follows:
Based on the documentation submitted, I am not satisfied that the applicant will be able to adequately perform the proposed work given their: -Insufficient ability in the language of the proposed employment Oral and written English are listed as requirements and no language test results were submitted with this application. Weighing the factors in this application. I am not satisfied that the applicant will depart Canada at the end of the period authorized for their stay. For the reasons above, I have refused this application.
[15] Broadly speaking, the question to be determined is whether the Officer’s decision was adequately justified in respect of the legal and factual constraints applicable to this matter. One of those constraints is set out in the Immigration and Refugee Protection Regulations [IRPR]. While the IRPR does not specify particular language requirements in respect of temporary foreign workers, it does require that work permit applicants demonstrate that they can perform the work they seek. Paragraph 200(3)(a) of the Regulations provides as follows:
(3) An officer shall not issue a work permit to a foreign national if
(a) there are reasonable grounds to believe that the foreign national is unable to perform the work sought;
[16] In performing their duties, an officer must carry out an independent assessment of whether an applicant has met the requirements of paragraph 200(3)(a) of the IRPR. As this Court has previously noted, an officer is “not bound to issue a work permit because there is a “positive” LMIA or because a prospective employer has found that an applicant can perform the job”
: Nandha v Canada (Citizenship and Immigration), 2024 FC 1694 at para 15 [Nandha], citing Singh v Canada (Citizenship and Immigration), 2024 FC 792 at para 18; Yue v Canada (Citizenship and Immigration), 2023 FC 417 at para 5; and Patel v. Canada (Citizenship and Immigration), 2021 FC 483 at para 32.
[17] Another consideration is the Respondent’s own policy statements related to foreign workers. In the Guideline entitled Foreign Workers: Assessing language requirements [the Guideline] the Department indicates that under paragraph 200(3)(a) of the IRPR, officers should not limit their assessment of language requirements to those set out in the LMIA. Rather, the language requirement stated in the LMIA should be “part of the officer's assessment of the applicant’s ability to perform the specific work sought”
because it is based on the employer's assessment of the language requirements for the job.
[18] The Guideline also instructs officers as to how they should assess language requirements, and how they should document such assessments in the GCMS:
An applicant's language ability can be assessed through an interview or official testing such as IELTS/TEF or in-house mission testing practice. In deciding to require proof of language ability, the officer’s notes should refer to the LMIA requirements, working conditions as described in the job offer and NOC requirements for the specific occupation, in determining what precise level of language requirement is necessary to perform the work sought. System notes must clearly indicate the officer’s language assessment, and in the case of a refusal, clearly show a detailed analysis on how the applicant failed to satisfy the officer that they would be able to perform the work sought.
[19] Beyond this, a small but instructive number of cases from this Court have explored the issue of language assessments in the context of work permit applications.
[20] In Singh v Canada (Citizenship and Immigration), 2022 FC 692 [Singh], my colleague Justice Diner, considered the case of an individual who had already worked in Canada, and sought a new work permit. An officer rejected the application, finding: “Applicant has not demonstrated that he meets the criteria of the LMIA: no Ielts results submitted. Language ability not demonstrated.”
In granting the application for judicial review of that decision, Justice Diner acknowledged that the LMIA did reference English language requirements, but found that the officer’s reasons were too focused on the absence of language test results while ignoring the fact that the Applicant had already performed the proposed work in Canada. As noted in the Guideline, Justice Diner found that an officer should look beyond the LMIA to the nature of the work itself and consider the precise level of language required: Singh at para 14.
[21] Similarly, in Singh v Canada (Citizenship and Immigration), 2023 FC 1036, Justice Mosley found (at para 30) that a visa officer had failed to provide a sufficiently detailed analysis as to why the applicant’s language abilities were insufficient, particularly in light of evidence that the applicant had studied in English.
[22] Conversely, in Nandha, Justice Little dismissed an application for judicial review of a work permit refusal, in which the officer concluded that the applicant had provided insufficient evidence of her English capacity. While the GCMS notes in that case were “not flawless,”
Justice Little found them to be sufficient in light of the thin record that was before the officer.
[23] Taking the above into consideration, I find this case to have more in common with Nandha than either of the Singh decisions referred to above. Here, as in Nandha, the LMIA set out verbal and written language requirements, and the applicants in both cases provided little evidence to demonstrate that they met those requirements. In Nandha, the applicant had provided a high school English grade and indicated that she had studied English over the course of 12 years of schooling.
[24] In this case, aside from the checked the box on the work permit application form indicating that Ms. Nguyen could communicate in English, she provided no information to indicate her level of fluency. In the face of essentially no evidentiary record on the Applicant’s English language skills, I have concluded that the Officer’s decision was reasonable, despite the lack of a detailed analysis, as the Guideline suggests is required in these circumstances.
[25] In finding that the Officer’s decision was reasonable, I am not suggesting that the Applicant was required to provide language test results. Other indicators of her English language capacity may have been sufficient in the circumstances, taking into account the nature of the work and the details contained in the offer letter.
[26] I would reiterate, however, that the requirements set out in the LMIA were largely ones emanating from the employer. Amongst other things, the employer indicated that the Applicant’s proposed work tasks would include spraying plants to prevent disease and pests. In this context, it is not surprising that some level of English proficiency may be important. As the Applicant provided no evidence of such proficiency, I conclude that the Officer’s reasons were, while far from perfect, reasonable.
V. CONCLUSION
[27] For the reasons set out above, I will dismiss this application for judicial review. Neither party proposed a question for certification, and I agree that none arises.
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