Citation: 2024 FC 1938
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Ottawa, Ontario, December 2, 2024
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PRESENT: The Honourable Mr. Justice Southcott
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BETWEEN:
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XING TIAN HOU
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Applicant |
and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
Overview
[1] This is an application for judicial review of a decision made by an Immigration, Refugees and Citizenship Canada officer [the Officer] dated September 28, 2023 [the Decision]. In the Decision, the Officer found that the Applicant did not qualify for a work permit under the Temporary Foreign Worker Program.
[2] As explained in further detail below, this application is dismissed, because the Officer reasonably concluded that the Applicant had not provided satisfactory proof of proficiency in the English language necessary to satisfy that requirement of the employment position for which he was applying.
II. Background
[3] The Applicant is a citizen of India. He applied for a work permit to work at Fresh Market Restaurant in Mississauga, Ontario, as a cook. As required, the Applicant’s application was supported by a Labour Market Impact Assessment [LMIA]. The LMIA indicated that the employment position required verbal and written English.
[4] In a letter dated September 28, 2023, conveying the Decision being considered in this application for judicial review, the Officer found that the Applicant’s work permit application under the Temporary Foreign Worker Program did not meet the requirements of the applicable legislation. The Officer was not satisfied that the Applicant would leave Canada at the end of his stay as required by paragraph 200(1)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], based on the purpose of his visit to Canada not being consistent with a temporary stay given the details provided in the application.
[5] The Officer’s Global Case Management System [GCMS] notes provide further reasons for the Decision as follows:
I have reviewed the application.
I have considered the following factors in my decision.
Applicant going as cook. 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.
Further, LMIA for this occupation requires completion of a three-year apprenticeship program for cooks or completion of college or other program in cooking or several years of commercial cooking experience. 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.
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.
III. Issue and Standard of Review
[6] The Applicant raises the following issues for the Court’s determination:
- Did the Officer make erroneous or unreasonable findings in arriving at the Decision?
- Did the Officer err by failing to provide the Applicant an opportunity to address the Officer’s concerns?
[7] As is implicit in the articulation of the first issue, the standard of reasonableness applies to the Court’s review of the merits of the Decision (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16-17). The second issue raises procedural fairness arguments, which are to be addressed on a standard akin to correctness (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54).
[8] The Respondent also raises an issue as to the admissibility of an exhibit attached to the Applicant’s supporting affidavit, sworn by a legal assistant in the office of the Applicant’s counsel [the Impugned Exhibit]. The Respondent argues that the Impugned Exhibit is inadmissible, because it was not before the Officer when the Decision was made. I will address that issue when considering the Applicant’s arguments that rely upon the Impugned Exhibit.
IV. Analysis
A. Did the Officer make erroneous or unreasonable findings in arriving at the Decision?
[9] In challenging the reasonableness of the Decision, the Applicant raises concerns about: (a) the Officer’s finding that the Applicant had not provided satisfactory proof of English language proficiency; (b) the Officer not being satisfied that the Applicant has several years of experience in commercial cooking; and (c) the Officer not being satisfied that the Applicant would depart Canada at the end of the period authorized for his stay.
[10] In relation to the Applicant’s language abilities, the Applicant accepts that, as indicated in the LMIA, written and verbal abilities in English are requirements for the employment position for which he sought a work permit, although the Applicant notes that the LMIA does not demand a precise level of language skills.
[11] The Applicant argues that the Officer erred in finding that he had not provided sufficient satisfactory proof of his language proficiency, because the Officer failed to take into account documents from the Applicant’s secondary school in India. The Applicant submits that these documents demonstrate that he completed his secondary schooling in English and would therefore clearly have the requisite ability in verbal and written English.
[12] The Applicant’s secondary school is named The Assembly of God Church School, which his counsel submits is a missionary school in which the language of instruction is English. His work permit application included: (a) a Transfer Certificate, bearing the heading “Anglo-Indian Schools in India – The Assembly of God Church School”
and written in the English language, which appears intended to confirm the Applicant’s transfer to that school in 1994; and (b) a Statement of Marks, again in the English language, reflecting the Applicant’s grades at the Assembly of God Church School.
[13] Based on the language of these documents and the reference in one of them to his school being an “Anglo-Indian”
school, the Applicant argues that the Officer should have recognized that his secondary schooling was conducted in English. The Applicant also submits that, as a specialized decision-maker considering visa applications from India, the Officer should have been aware of the role of missionary schools in India where, as a former British colony, education is frequently conducted in English.
[14] The Applicant also seeks to rely on the Impugned Exhibit in support of this position. This document is a copy of an article entitled “A Brief History - Assembly of God Church Schools, Building a Better India Today”
, downloaded from the Internet, that relates to Assembly of God Church Schools and includes a reference to an “English Medium school”
, which the Applicant’s counsel submits refers to a school where the language of instruction is English. The Applicant recognizes that the Impugned Exhibit was not included in his work permit application. However, he argues that, because it is in the public domain on the Internet, it was readily available to the Officer and is therefore appropriate for the Court to take into account in assessing the reasonableness of the Decision.
[15] I agree with the Respondent that the Impugned Exhibit is 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 Applicant does not seek to invoke any of the applicable exceptions, and I disagree with his position that, because the Impugned Exhibit was in the public domain, it should be regarded as part of the record before the Officer or to which the Officer should have had recourse before making the Decision.
[16] Turning to the documents related to the Applicant’s school that were before the Officer, I again agree with the Respondent’s position that 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. I accept that it would not be impossible to infer from the language of the documents or the “Anglo-Indian”
reference that it might be an English-language school. However, in the absence of anything more explicit in the record before the Officer (even a statement in the Applicant’s submissions that he studied in English), it was not unreasonable for the Officer not to conclude that the Applicant had undertaken his secondary schooling in English.
[17] Nor do I find a basis to conclude that the Officer overlooked this documentation. The GCMS notes expressly address the transcript of the Applicant’s grades, as the Officer noted that the Applicant took an English course in secondary school. However, the Officer concluded that it was unclear what was taught and whether listening and speaking skills were tested, as well as noting that the course was old and therefore did not reflect the Applicant’s current language proficiency. This reasoning engages with the evidence, is intelligible, and withstands reasonableness review.
[18] As noted above, the Applicant also argues that, based on the evidence included in the work permit application, it was unreasonable for the Officer not to be satisfied that the Applicant has several years of experience in commercial cooking.
[19] However, as the Respondent submits, the Court’s conclusion that the Officer’s finding on the Applicant’s English language proficiency is reasonable is determinative of the outcome of this application for judicial review. Written and verbal English language proficiency, albeit at an unspecified level, is a requirement of the Applicant’s intended employment. 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.
[20] 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. It is therefore unnecessary for the Court to engage with those arguments.
[21] However, I will address briefly the Applicant’s argument that it was unreasonable for the Officer not to be satisfied that the Applicant would depart Canada at the end of the period authorized for his stay, because the Applicant submits that this finding represents application of an incorrect test. He relies on Murai v Canada (Minister of Citizenship and Immigration), 2006 FC 186 [Murai], in which the Court stated that that the officer in that case should have considered whether the applicant would stay in Canada illegally. The Applicant also notes the statement in Murai (at para 12) that previous immigration compliance represents compelling evidence of disinclination to stay in Canada illegally, and he points to such compliance on his part during an earlier period when he worked in Finland.
[22] 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. Indeed, this is the language of paragraph 200(1)(b) of the IRPR. As I read Murai, the Court’s point was that it is not improper for a visa applicant to seek to extend their period of stay through available immigration programs, provided they intend to leave Canada if such efforts are unsuccessful. This point has no application in the case at hand.
[23] Nor does the Applicant’s Finnish immigration history undermine the reasonableness of the Decision. As the Respondent submits, the Officer’s conclusion that the Applicant would not leave Canada at the end of the period authorized for his stay was based on the finding that he did not meet the requirements of his employment. As explained earlier in these Reasons, that finding is reasonable.
B. Did the Officer err by failing to provide the Applicant an opportunity to address the Officer’s concerns?
[24] The Applicant’s procedural fairness arguments relate to Officer’s analysis of the Applicant’s experience. However, for the reasons explained above, the Court’s conclusion that the Officer’s finding on the Applicant’s English language proficiency is reasonable is determinative of the outcome of this application for judicial review. As such, it is unnecessary for the Court to engage with the parties’ procedural fairness arguments surrounding the Applicant’s experience.
V. Conclusion
[25] In conclusion, as I find no reviewable error in connection with the Decision, this application for judicial review will be dismissed. Neither party proposed any question for certification for appeal, and none is stated.
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