Sun v. Canada (Citizenship and Immigration), 2019 FC 1548 : Work Permit Refusal Upheld Where Applicant Failed to Provide Objective Evidence of English Ability Required for the Position

The Federal Court reviewed the refusal of a work permit application for a spa manager position supported by a positive LMIA.

The officer accepted that the applicant had relevant spa management experience but was not satisfied that she could adequately perform the proposed work because she had provided insufficient evidence of the English-language ability required by the position.

The Court upheld the refusal, finding both that there was no breach of procedural fairness and that the officer reasonably required objective evidence of language ability.

Key Principle

Under paragraph 200(3)(a) of the IRPR, a work permit cannot be issued where there are reasonable grounds to believe that the foreign national is unable to perform the work sought.

Where the LMIA, job offer, or occupational duties clearly require English or French, the applicant bears the burden of providing sufficient evidence demonstrating the necessary language ability.

An officer is generally not required to issue a procedural fairness letter, request additional documents, or conduct an interview where the concern is simply that the evidence provided is insufficient. Procedural fairness concerns are different where the officer doubts the credibility, authenticity, or genuineness of the evidence.

Background

The applicant was a Chinese citizen with several years of experience in the cosmetics and spa industries.

She obtained a job offer to work as a spa manager in Canada for two years. The employer had received a positive LMIA for a full-time permanent position under NOC 0651.

The position required written and oral English. Its duties included communicating with clients, responding to complaints, resolving problems, establishing policies and procedures, and hiring, training, and supervising employees.

The applicant’s counsel stated that she was able to communicate in English and that she had previously worked with the Canadian employer in China. However, the application contained no objective evidence demonstrating her English-language abilities.

Court Findings

The applicant argued that the officer should have given her an opportunity to provide language-test results or demonstrate her abilities through an interview.

The Court disagreed.

The officer had not found that the applicant was dishonest or that the evidence she submitted was unreliable. Rather, the officer concluded that she had not provided enough evidence to establish that she possessed the language skills necessary to perform the job.

That distinction was important. Where the concern relates to evidentiary sufficiency or failure to establish a statutory requirement, the officer generally has no obligation to alert the applicant to the weakness before refusing the application.

The Court also upheld the substantive language assessment.

The LMIA expressly required oral and written English, and the proposed duties involved significant communication with customers and employees. In that context, it was reasonable for the officer to expect objective evidence of language ability.

Counsel’s statement that the applicant could communicate in English was not evidence of language proficiency. Similarly, the fact that she had previously worked for the prospective employer in China did not establish that she had performed that work in English or that the employer had assessed her English-language abilities.

The Court confirmed that an application prepared in English, a cover letter, or unsupported assertions of language ability may not be enough where language proficiency is an essential element of the Canadian position.

Outcome

The Federal Court dismissed the application for judicial review, finding no breach of procedural fairness and concluding that the officer reasonably determined that the applicant had failed to demonstrate the English-language ability required to perform the proposed work.

Case Citation:

Sun v. Canada (Citizenship and Immigration), 2019 FC 1548 CanLII