Docket: IMM-16435-23
Citation: 2025 FC 520
Toronto, Ontario, March 20, 2025
PRESENT: Madam Justice Go
BETWEEN: |
AMIR TAHERI |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Amir Taheri [Applicant], a citizen of Iran, applied for a work permit under the International Mobility Program to Immigration, Refugees and Citizenship Canada [IRCC] on August 8, 2023. The Applicant’s work permit application is based on a positive Labour Market Impact Assessment [LMIA] from a prospective employer to work as a flooring installer in Ontario.
[2] By way of a letter dated November 23, 2023, an IRCC officer [Officer] refused the Applicant’s work permit application [Decision].
[3] The Applicant now brings this application for judicial review on the ground that the Decision is unreasonable. I grant the application for the reasons set out below.
[4] The issue before me is whether the Decision was reasonable: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 25. The Court should assess whether the Decision bears the requisite hallmarks of justification, transparency, and intelligibility: Vavilov at para 99. The Applicants bear the onus of demonstrating that the Decision was unreasonable: Vavilov at para 100.
[5] The Global Case Management System [GCMS] notes dated November 23, 2023, set out the Officer’s reasons for refusing the Applicant’s work permit. The GCMS notes state, in part:
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
LMIA provided stipulates language requirements. Submissions absent a formal language assessment. In the absence of a language assessment, I am not satisfied Applicant demonstrates they meet the requirements to perform in the intended position. Reference R200(3)(a).
[6] R200(3)(a) refers to paragraph 200(3)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 which states 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.
[7] The Applicant argues the Decision lacks transparency. He asserts that neither the National Occupational Classification [NOC], LMIA, nor the offer of employment prescribed a mandatory level of English proficiency or specified a minimum language requirement. The Applicant submits that while the LMIA mentions a verbal English requirement, it does not mandate written proficiency. The Applicant cites several cases in support of his position including: Singh v Canada (Citizenship and Immigration), 2024 FC 1165 [Singh 2024]; Hosseinibay v Canada (Citizenship and Immigration), 2023 FC 988; Singh v Canada (Citizenship and Immigration), 2023 FC 1754 [Singh 2023]; Singh v Canada (Citizenship and Immigration), 2022 FC 692 [Singh 2022].
[8] Given the above, the Applicant argues the Officer failed to provide an intelligible analysis in support of their finding as to how they concluded that the Applicant cannot perform the work sought.
[9] I agree.
[10] The LMIA included a verbal language requirement of English or French, however, there was no written language requirement. The Applicant submitted evidence that he undertook English courses in high school and university. The Officer did not engage with the evidence the Applicant submitted, and found the Applicant had demonstrated insufficient ability in the language of the proposed employment based solely on the absence of a language assessment.
[11] As noted in Singh 2024, the Court held that it was unreasonable for the visa officer, in that case, to have refused the application for the applicant’s failure to provide a secondary school diploma, which was listed as optional under the NOC and LMIA. The Court emphasized that officers cannot impose additional requirements beyond those specified in the NOC or LMIA. I also note that in Singh 2022 at para 12, the Court found that the visa officer was required to “determine the precise level of language ability required with reference to the LMIA, in addition to working conditions described in the job offer.”
[12] In Singh 2023 at para 13, the Court found the visa officer erred by refusing a work permit based in part on insufficient language ability, despite the fact that “no minimum test score was required by the employer, no minimum skill level was prescribed in either the NOC or the LMIA.”
More critically, the Court noted that the “Officer must engage with the evidence and provide some explanation to support the conclusion that the Applicant would be unable to perform the job:”
Singh 2023 at para 13.
[13] In Carciu v Canada (Citizenship and Immigration), 2023 FC 809 [Carciu], where the applicant submitted a work permit application which was based on an LMIA without proof of English language proficiency, the Court found that while “the Officer has the right to assess language skills, the assessment must still take into consideration the evidence submitted in support of the application:”
Carciu at para 16. The Court further held that “the Officer does not appear to have considered the evidence of language proficiency provided,”
and that “[t]here is also no articulation of the level of proficiency the Applicant was required to demonstrate or how he failed to meet the standard:”
Carciu at para 17.
[14] Similar to the cases cited above, I find the Officer made an error in the case at bar by imposing an obligation on the Applicant to provide a language assessment when no such requirement existed in the LMIA, and by failing to engage with the evidence the Applicant submitted.
[15] The Respondent submits that the sort of evidence the Applicant submitted was similar to that presented in Hou v Canada (Citizenship and Immigration), 2024 FC 1938 [Hou], in that the evidence did not indicate that the Applicant had any further studies or indeed any involvement with the English language in the 23 years that have passed since 2001. As such, it was reasonable for the Officer to find the Applicant did not meet the language requirement.
[16] However, I find Hou is distinguishable on the facts. At para 16 of Hou, the Court found that there was nothing in the applicant’s evidence that indicated that the language of instruction of his school was English. At para 17, the Court further noted that the officer concluded it was unclear what was taught and whether listening and speaking skills were tested in the applicant’s course, while noting that the course was old and therefore did not reflect the applicant’s current language proficiency. The Court determined that the officer’s reasoning engaged with the applicant’s evidence, was intelligible, and withstood reasonableness review. By contrast, the Officer in this case did not engage with the Applicant’s evidence at all.
[17] The Respondent also argues that this Court has acknowledged that where an applicant chooses to omit evidence specifically listed in a document checklist, they do so at their own risk. The Respondent submitted to this court, by way of an affidavit, the Immigration Canada’s Work Permit Ankara Visa Office Instructions, IMM 5896E [Ankara Instructions]. The Ankara Instructions include a Work Permit Checklist to assist officers in assessing an application. The Work Permit Checklist states that applicants are required to submit results of language testing taken within the last two years. The Respondent submits it is therefore reasonable for an officer to expect to see that evidence and to have concerns arising from its absence: Aghvamiamoli v Canada (Citizenship and Immigration), 2023 FC 1613 at para 28; Davoodabadi v Canada (Citizenship and Immigration), 2024 FC 85 at para 13; Eslami v Canada (Citizenship and Immigration), 2024 FC 409 at para 13.
[18] I reject the Respondent’s argument for two reasons. First, all the cases the Respondent cites to support their position deal with the financial requirements for study permits and are therefore distinguishable from the case at hand. Second, as the Applicant points out, the Work Permit Checklist specifically states that language test results are required “[i]f English or French language ability is a requirement of the job offer.”
In this case, there is no such requirement in the job offer.
[19] For all the reasons set out above, I find the Decision unreasonable.
[20] The application for judicial review is granted.
[21] There is no question for certification.
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