Sharma v. Canada (Citizenship and Immigration), 2024 FC 1928 : Work Permit Refusal Set Aside After Officer Failed to Assess Language Ability in the Context of the LMIA

The Federal Court reviewed IRCC’s second refusal of Naresh Sharma’s work permit application for a kitchen helper position in British Columbia. The positive Labour Market Impact Assessment required verbal and written English. The applicant relied on a Grade 12 English course, more than five years of similar experience, and an employer letter explaining that kitchen staff spoke English, Punjabi, and Hindi. The officer concluded that the applicant’s English ability could create serious workplace health and safety risks. The Court granted judicial review because the officer imposed an unexplained language standard and relied on speculation.

Key Principle

When assessing language ability for a work permit, an officer must connect the required level of proficiency to the LMIA, the job offer, working conditions, and the applicable occupational description. An officer cannot substitute a personal language standard or speculate about workplace safety risks without evidence. Where coworkers can provide instructions in the applicant’s language and the occupation includes on-the-job training, those circumstances must be meaningfully considered.

Background

The applicant was offered a kitchen helper position at Chacha’s Tandoor and Grill. He submitted a positive LMIA identifying verbal and written English as requirements.

The applicant did not provide a standardized language test. He submitted a 1983 Grade 12 transcript showing a 40% mark in English.

The employer explained that the applicant would work in the kitchen and that coworkers spoke English, Punjabi, and Hindi. The employer stated that communication would not be a problem.

The officer found that the applicant required functional English to understand safety procedures and operate equipment. The officer concluded that insufficient English could endanger the applicant and coworkers.

Court Findings

• Officer Imposed an Unexplained Language Standard
The Court held that the officer unreasonably imposed a functional English-language requirement that was not supported by the LMIA or the employer’s job description. Although the LMIA required verbal and written English, the officer failed to explain why the applicant’s evidence was insufficient to satisfy those requirements.

• Employer’s Evidence Was Not Meaningfully Considered
The employer explained that the applicant would work with staff who spoke English, Punjabi, and Hindi and that communication in the workplace would not be an issue. The Court found that the officer failed to meaningfully assess this evidence before concluding that the applicant lacked adequate language ability.

• On-the-Job Training Was a Relevant Consideration
The Court held that the applicable occupational description recognized that kitchen helpers receive on-the-job training. This included training on workplace procedures and safety requirements, making it unreasonable to assume that the applicant’s existing English ability alone would prevent him from performing the job.

• Health and Safety Concerns Were Speculative
The Court found that the officer’s conclusion that the applicant’s English ability would create serious health and safety risks was unsupported by the evidence. Without any factual basis linking the applicant’s language skills to actual workplace dangers, the finding amounted to speculation.

• Prior Work Experience Was Overlooked
The applicant had more than five years of experience performing similar kitchen duties in India. The Court held that this significant experience was relevant to his ability to safely perform the proposed work and should have been meaningfully considered in assessing his work permit application.

Outcome

The Federal Court granted judicial review and returned the work permit application to a different visa officer for redetermination. The Court did not decide the applicant’s res judicata argument. No question was certified.

Case Citation:

Sharma v. Canada (Citizenship and Immigration), 2024 FC 1928 (CanLII)