He v. Canada (Citizenship and Immigration), 2021 FC 1027 : Work Permit Refusal Set Aside After Officer Imposed Unexplained Suitability Requirements on Childcare Applicant

The Federal Court reviewed Yunying He’s second refusal of a work permit and temporary resident visa for an in-home childcare position. The officer found that she lacked sufficient ability to perform the work and was unlikely to leave Canada. The Court found both conclusions unreasonable.

Key Principle

A work permit officer may assess whether an applicant can perform the proposed job and whether they will leave Canada. However, the assessment must be tied to the actual duties, LMIA requirements, and evidence. Officers cannot impose unexplained suitability requirements.

Background

Ms. He was offered an in-home childcare position caring for two school-aged children, supported by an LMIA under NOC 4411. Her application included education, bank employment, housekeeping experience, caregiving training, and childcare references. The officer nevertheless found her experience insufficient.

Court Findings

• Officer Failed to Connect Experience to the Actual Job

The Court found that the officer identified the applicant’s experience but never explained why it was insufficient for the specific position. The officer did not examine the contract duties, including preparing meals, transporting the children, cleaning, and laundry. Ms. He had childcare training, childcare references, and housekeeping experience relevant to those duties.

• Additional Qualifications Were Improperly Imported

The officer failed to consider the LMIA and NOC 4411 requirements. The position required secondary school completion and English communication ability, with no additional qualifications identified. The Court held that Ms. He’s qualifications exceeded those requirements. An officer can reject a work permit despite an approved LMIA, but must explain why the applicant cannot perform the work.

• Employer’s Assessment Could Not Be Overridden Without Explanation

The genuineness of the job offer was not questioned, yet the officer rejected suitability without addressing the employer’s requirements or duties. The Court held that unexplained suitability requirements cannot replace an evidentiary assessment.

• Overstay Finding Had No Supporting Reasoning

The officer’s reasoning was limited to stating that Ms. He would not leave Canada based on the purpose of her visit. The Court found no explanation for this conclusion. Ms. He had addressed her temporary status and provided evidence of previous compliance with immigration requirements in Thailand, but the officer did not address that evidence.

• Brief Reasons Still Must Be Responsive

The Court recognized that work permit and TRV decisions do not require lengthy reasons. Nevertheless, the reasons must disclose a rational chain of analysis. The officer’s unexplained conclusions did not allow the applicant or Court to understand the basis for refusal.

• Procedural Fairness Issue Was Not Decided

Ms. He also challenged the handling of documents submitted in response to a procedural fairness letter. Court declined to decide this issue because the substantive decision was already unreasonable.

• Indirect Substitution Was Refused

The applicant sought acceptance of the application. The Court declined because continuing eligibility could change, including whether the employment offer remained available.

• Costs Were Awarded

The Court found special reasons for costs because this was the third determination after more than three years, the second refusal repeated the first, and counsel had warned the Respondent about the same error. Costs were fixed at $1,500.

Outcome

The Federal Court granted judicial review, remitted the matter to a new officer, awarded $1,500 in costs, and certified no question for appeal.

Case Citation:

He v. Canada (Citizenship and Immigration), 2021 FC 1027 (CanLII)