Hosseinibay v. Canada (Citizenship and Immigration), 2023 FC 988 : Work Permit Refusal Set Aside Where Officer Failed to Explain Language Assessment

The Federal Court reviewed the refusal of Mehri Hosseinibay’s LMIA-supported work permit application for a Construction Project Coordinator position. The officer concluded that her English ability was insufficient for the proposed employment and, on that basis, was not satisfied she would leave Canada at the end of her authorized stay. The Court granted judicial review because the reasons did not explain how the officer assessed her language ability or why the evidence was insufficient.

Key Principle

A visa officer may assess whether an applicant has sufficient language ability to perform proposed employment, but the decision must explain the standard applied and why the applicant’s evidence fails to meet it. Where the occupational description contains no language requirement and the applicant provides language testing and employer confirmation, an unexplained conclusion of insufficient proficiency is unreasonable.

Background

The applicant had six years of relevant construction project coordination and management experience and applied for a one-year position supported by a positive LMIA. After an earlier refusal based on language ability, she reapplied with additional information concerning her qualifications, employer, training, and immigration history. She also provided IELTS results showing modest or intermediate English proficiency.

Court Findings

• No Occupational Language Requirement Was Identified

The applicable occupational description for Construction Managers contained no prescribed language requirement. Although this did not prevent the officer from assessing language ability, it heightened the need to explain what level of English the position required and why the applicant failed to meet that standard.

• IELTS Results Were Not Meaningfully Assessed

The applicant voluntarily provided IELTS results despite no formal testing requirement. The officer simply concluded that her language ability was insufficient without explaining what aspect of the score created concern or how it affected her ability to perform the proposed duties.

• Employer’s Assessment of Qualifications Was Not Addressed

The prospective employer had concluded that the applicant met the requirements of the position and had obtained a positive LMIA. The reasons did not demonstrate meaningful consideration of this evidence when concluding that she lacked sufficient language ability to coordinate the work.

• Evidence of Ability to Perform the Job Was Not Analyzed

The applicant had relevant education, substantial work experience, and had completed the online training courses required by the employer. The Court found no indication that the officer considered how this evidence related to her capacity to perform the position despite the language concern.

• Minister Could Not Supply the Missing Language Analysis

At the hearing, the Minister argued that an IELTS score of 5 could reasonably be considered inadequate for the position. The Court rejected reliance on this explanation because the officer had never conducted or recorded such an analysis. Judicial review examines the justification actually provided by the decision-maker, not reasons later developed by counsel.

Outcome

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

Case Citation:

Hosseinibay v. Canada (Citizenship and Immigration), 2023 FC 988 (CanLII)