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Regulation 200(3)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 provides 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.
An issue that is becomming increasingly common is whether someone has sufficient language ability to perform the work sought.
For the most part, the Federal Court has been very deferential to visa officers when assessing whether they have the language requirements to perform the work sought.
In Sen v. Canada (Citizenship and Immigration), 2022 FC 777, for example, Madam Justice Strickland determined that it was reasonable for a visa officer to determine that someone with a 3.5 IELTS reading score could not perform the duties of a Cook in Canada because they might be unable to follow recipes, read notes from serving staff, and read food safety instructions.
In Singh v. CAnada (Citizenship and Immigration), 2021 FC 638 Justice Bell set aside the refusal of a work permit application for a truck driver. There, an officer wrote “I have concerns regarding the applicant’s English language skills which are also listed as a requirement for the position on the LMO. While the applicant has an overall band score of 5.5. on the IELTS, I note that he only received a score of 4.5 in reading and a 5 in speaking. Although the LMIA does not explicitly state a minimum required IELTS score for this position, I note that the British Council classifies students at this band level as being a “Limited user [whose] basic competence is limited to familiar situations. [They] frequently show problems in understanding and expression. [They] are not able to use complex language.”
Justice Bell determined that relying solely on the IELTS description was improper. He wrote:
The visa officer does not mention the Canadian Language Benchmark, the prospective employer’s declared language requirement (level 4 of the Canadian Language Benchmark), nor does he or she mention the fact that the prospective employer qualified Mr. Singh’s language skills as excellent. Finally, I note that the British Council referred to students’ abilities. It clearly did not refer to an adult’s language abilities in his or her own trade or calling.
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I am of the view the visa officer fixated on Mr. Singh’s IELTS test results and British Council comparisons. He failed to consider the very real and probative evidence before him. That evidence included; i. the employer’s language requirements; ii. the employer’s assessment of language ability; iii. the Canadian Language Benchmark. iv. the fact no minimum IELTS result was required; and, v. the detailed comparison between the IELTS and the CLB provided by the employer.
The fact that a resume is in English or that a resume states that someone speaks English is generally not persuassive evidence that one actually speaks English. In Puyda v. Canada (Citizenship and Immigration), 2022 FC 82, Justice McHaffie stated:
I conclude it was reasonable for the visa officer to render their decision without referring to the English resume. Mr. Puyda’s application was filed under cover of a submission letter from an immigration consultant, which did not refer to the resume as demonstrating English language proficiency. There is nothing in the resume itself that objectively confirms it was prepared by Mr. Puyda without assistance. Nor does it speak to his verbal proficiency, other than through the imprecise and unsubstantiated reference to his knowledge of English as “Intermediate.” This Court has found on a number of occasions that “it is reasonable for an officer to expect more than an English language application and cover letter to verify the applicant’s ability to speak and write in English”: Kumar v Canada (Citizenship and Immigration), 2020 FC 935 at para 30, citing Sun v Canada (Citizenship and Immigration), 2019 FC 1548 at para 34; Virk v Canada (Citizenship and Immigration), 2014 FC 150 at paras 5–6. The same applies to an English resume. It is perhaps worth noting that Mr. Puyda’s application form indicated he had in fact taken a test from a designated testing agency to assess his proficiency in English, but those test results were not included in his application.
