Docket: IMM-6445-23
Citation: 2024 FC 1928
Ottawa, Ontario, November 29, 2024
PRESENT: The Honourable Mr. Justice Fothergill
BETWEEN: |
NARESH SHARMA |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] Naresh Sharma is a citizen of India. He was offered a job as a kitchen helper at Chacha’s Tandoor and Grill in Surrey, British Columbia. He submitted an application for a work permit in accordance with National Occupation Classification [NOC] 6711.
[2] In support of his application, Mr. Sharma provided a positive Labour Market Impact Assessment [LMIA] that noted the requirement of proficiency in both verbal and written English. Mr. Sharma provided a grade 12 transcript from 1983 indicating that he had received a mark of 40% in an English course.
[3] A visa officer refused Mr. Sharma’s work permit application on October 25, 2022 on the ground that he had not demonstrated he would be able to adequately perform the work of a kitchen helper. Mr. Sharma sought judicial review of the refusal. The matter was settled, and the application for a work permit was remitted to a different visa officer for redetermination.
[4] On March 24, 2023, Mr. Sharma’s application for a work permit was refused a second time. He seeks judicial review of the second refusal.
[5] The visa officer’s notes in the Global Case Management System form a part of the decision under review (Ebrahimshani v Canada (Citizenship and Immigration), 2020 FC 89 at para 5). They read as follows:
Reviewed updated submissions from PA.
PA applying for WP in NOC 6711 as a kitchen helper. LMIA requires oral and written English. PA has not provided standard language test results accepted by 1RCC.
Rep states that as a kitchen helper, PA will be performing his duties at the back end (in the kitchen), the employer is a traditional Indian restaurant and all the staff including cooks/ chefs are well versed with Hindi, Punjabi and English. PA will therefore have no issues communicating with his co-workers in the kitchen.
Rep further states that PA has secured 40% marks in grade 12 and therefore has a basic understanding of English language. Reviewed transcript. Though PA studied English as a subject, it is unclear at what level these classes were provided.
I note that PA’s duties as a kitchen helper would include operating dishwashers, receiving and storing supplies in refrigerators and storage places, cutting veges [sic] and fruits etc. In my opinion, performing these duties and working in the Canadian work environment would require knowledge of safety procedures and regulations and thus require a functional level of English language ability. The lack of English language ability may have serious consequences on the health and safety of PA and other co-workers.
I conclude that PA has not provided sufficient evidence to demonstrate English language proficiency. I am not satisfied with the information provided that PA has clearly demonstrated his language proficiency to meet the LMIA requirements. Refused under R200(3)(a).
[6] The visa officer’s decision is subject to review by this Court against the standard of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 10). The Court will intervene only where “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
(Vavilov at para 100).
[7] The criteria of “justification, intelligibility and transparency”
are met if the reasons allow the Court to understand why the decision was made, and determine whether the decision falls within the range of acceptable outcomes defensible in respect of the facts and law (Vavilov at paras 85-86, citing Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[8] Mr. Sharma says that the visa officer unreasonably treated the LMIA’s language requirement as determinative, rather than balancing the language requirement against his prospective employer’s description of the work and the nature of the job (citing Ul Zaman v Canada (Citizenship and Immigration), 2020 FC 268 [Ul Zaman] at para 34).
[9] According to the policy guidelines published by Immigration, Refugees and Citizenship Canada [IRCC] titled Foreign Workers: Assessing language requirements:
[…] 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.
[10] In Singh v Canada (Citizenship and Immigration), 2023 FC 1036, Justice Richard Mosley overturned a visa officer’s refusal to grant a work permit for the following reasons (at para 28):
However, the officer’s assessment of the Applicant’s language abilities was not, in my view, reasonable. While there is no dispute between the parties that officers have a discretion in determining language sufficiency, it is unreasonable for a visa officer to substitute a language requirement without justification: Bano v Canada (Citizenship and Immigration), 2020 FC 568 at para 21. Here, the Officer substituted their own appreciation of the language requirements to that of the LMIA and NOC description, which imposed none.
[11] In this case, the LMIA did include a language requirement. However, Mr. Sharma maintains that proficiency in verbal and written English was included in the LMIA only because the employer could not opt out of the requirement that one of Canada’s two official languages be specified for the job (citing Ul Zaman at para 11). It appears there was evidence to this effect before the Court in Ul Zaman, but no similar evidence has been tendered here.
[12] I nevertheless agree with Mr. Sharma that the visa officer unreasonably imposed language requirements without justification, and substituted his or her own appreciation of language requirements for those contained in the LMIA and the employer’s work description. Neither said anything about the need for a kitchen helper to have a functional knowledge of English in order to understand safety procedures and regulations.
[13] The employer’s letter explained that other kitchen staff speak English, Punjabi, and Hindi fluently, and any of these people could convey the necessary information to Mr. Sharma. Furthermore, NOC 6711 recognizes that “on-the-job training is provided”
for the position of kitchen helper, which would presumably include training on regulations and safety procedures.
[14] Considering that Mr. Sharma had more than five years of experience in similar positions in India, the visa officer unreasonably concluded that his lack of proficiency in verbal and written English could result in “serious consequences on the health and safety”
of his coworkers. This was nothing more than speculation.
[15] In light of my conclusion that the visa officer’s decision was unreasonable, it is unnecessary to consider Mr. Sharma’s further argument that the officer was precluded by the doctrine of res judicata from refusing the application for the same reason it was rejected the first time (citing Vasquez v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8850 (FC) at para 6). Mr. Sharma’s application for leave and judicial review of the first visa officer’s decision was discontinued on consent, and did not result in a prior determination by this Court. Even if the first refusal had been quashed by the Court, this would not give rise to issue estoppel in a subsequent visa officer’s redetermination of the work permit application (Lee v Canada (Minister of Citizenship and Immigration), 2003 FCT 743 at para 11).
[16] To the extent that Mr. Sharma relies on IRCC’s decision to settle the first application for leave and judicial review, he did not assert res judicata before the second visa officer, and he therefore cannot raise the issue for the first time on judicial review (Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at paras 22-26).
[17] It follows that the issue of res judicata cannot form the basis for a certified question for appeal pursuant to s 74 of the Immigration and Refugee Protection Act, SC 2001, c 27 (Canada (Minister of Citizenship and Immigration) v Zazai, 2004 FCA 89 at paras 11-12).
[18] The application for judicial review is allowed, and the matter is remitted to a different visa officer for redetermination. No question is certified for appeal.
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