Guitang v. Canada (Citizenship and Immigration), 2025 FC 835 : LMIA-Based Work Permit Refusal Set Aside After Officer Applied Incorrect Job Qualification Standards

The Federal Court reviewed IRCC’s refusal of Geraldine Guitang’s LMIA-based work permit application for employment as a personal support worker. The applicant, a citizen of the Philippines, relied on her experience as a domestic helper in Hong Kong and as a single mother who raised three children. The officer refused the application because she had not completed formal training in caring for persons with disabilities. The Court granted judicial review, finding that the officer confused general National Occupational Classification requirements with the employer’s specific LMIA requirements and treated an optional qualification as mandatory.

Key Principle

Visa officers may independently assess whether a foreign worker can perform the proposed employment, but they must distinguish between general NOC employment requirements and the qualifications required by the employer in the approved LMIA. Wording such as “may be required” identifies a possible requirement that some employers impose, not a universal qualification. An officer acts unreasonably by refusing a work permit solely because an applicant lacks an optional qualification that the employer did not require.

Background

The applicant entered Canada as a temporary worker in June 2023 and applied in January 2024 for an LMIA-based work permit as a personal support worker under NOC 44101.

Her statutory declaration described her experience working as a domestic helper in Hong Kong and her caregiving background from raising three children as a single mother.

The approved LMIA required secondary school education and written and verbal English. It did not require home-support courses, first-aid certification, or specialized training in caring for elderly persons or persons with disabilities.

The officer nevertheless relied on the broader NOC 44101 description, which stated that home-management experience, college courses, first-aid certification, or specialized caregiving training “may be required.” Because the applicant had not shown completion of a disability-care training program, the officer concluded that she did not meet the job requirements.

Court Findings

• Officer Confused NOC and LMIA Requirements

The Court found that the GCMS notes incorrectly described the general NOC requirements as requirements contained in the LMIA. A reference to NOC 44101 in the LMIA did not incorporate every general qualification listed for the different occupations covered by that code.

• Optional Requirements Were Treated as Mandatory

The Court emphasized that government guidance distinguishes between “is required,” “is usually required,” and “may be required.” The phrase “may be required” means that some employers might impose the qualification, but it is not universal.

The officer therefore erred by treating formal disability-care training as mandatory when the employer had not included it as a condition of employment.

• Officer’s Independent Discretion Did Not Cure the Error

Although officers are not bound by an LMIA and must independently assess an applicant’s ability to perform the job, the refusal was not based on the particular disability or level of care involved. It was based solely on the absence of a non-mandatory NOC qualification.

Outcome

The Federal Court granted judicial review, set aside the work permit refusal, and returned the application to a different officer for redetermination. No question was certified.

Case Citation:

Guitang v. Canada (Citizenship and Immigration), 2025 FC 835 (CanLII)