Unable to Perform the Work – A Deep-ish Dive into the R.200(3)(a) Ground of Refusal

IRCC appears to be refusing more cases on this ground. What does it mean? What cases are captured?

You have hired who think is the perfect candidate. The Labour Market Impact Assessment (LMIA) was approved by Employment and Social Development Canada (ESDC). You are applying for the work permit – at an overseas visa office or at the port of entry only to receive a refusal on the basis of R.200(3)(a) of the Immigration and Refugee Protections Regulations. Was something wrong with the position? The applicant’s resume? The evidence provided? Their language skills?

Let’s jump in.

Foreign worker unable to perform duties of job – via DALL-E-2

First, and foremost as always we start with the legal provision. We will then pull up some case law as case studies to see if we can isolate some trends.

R.200 IRPR sets out the grounds by which an Officer should issue a work permit to a foreign national making an application before entering Canada. This is the case that captures the overseas work permit or port of entry (“POE”) work permit applications.

Work permit

200 (1) Subject to subsections (2) and (3) 鈥 and, in respect of a foreign national who makes an application for a work permit before entering Canada, subject to section 87.3 of the Act 鈥 an officer shall issue a work permit to a foreign national if, following an examination, it is established that

The list of criteria is followed in subsection (3) by a list of exceptions, including the six-month bar which I have previously written about.

Exceptions

(3) An officer shall not issue a work permit to a foreign national if

(a) there are reasonable grounds to believe that the foreign national is unable to perform the work sought;

There are two main considerations here: (1) the standard of proof required by the officer to deny (i.e. refuse) the issuance of a work permit and (2) the legal test which forms the basis of the officer’s enquiry.

Reasonable Grounds to Believe

While it is probably second nature to most practitioners, it is worth repeating that the reasonable grounds to believe (historically also called the reasonable and probable grounds standard) is in the spectrum between mere suspicion and the balance of probabilities (50%+1).

As stated by Anne-Marie Boisvert:

“the concept of reasonable grounds to believe does not require that the apprehended fact be proved or established, and it can be argued that the decision-maker has made a
reasonable error regarding the actual existence of a fact or in their apprehension of the
situation. What matters is that the person had, at the time of the action, reasonable
grounds to believe that the situation existed.

She adds:

“In other words, to meet the standard of reasonable grounds to believe that a situation or
fact exists, it is not necessary to establish (whether beyond a reasonable doubt or by a
preponderance of evidence) that the situation or fact exists. It is the reasonable grounds
to believe, at the time the decision was made, that must be established.”

Because of this lower standard, I would argue that what appears to be a relatively minor insufficiency of evidence – missing language test results, paystubs, unclear duties – may be enough to generate concerns, on the standard of reasonable grounds to believe – to meet the threshold of a reasonable finding.

Unable to Perform the Work Sought

We now move on to now the second part – the legal test – the inability to perform the work sought. At this stage, we ask where an Officer might make such a determination.

An important part of this starting point, which the Court has identified on several occasions, are that visa officers are not to be rubber stamps and simply adopt the Employer’s statements from the positive LMIA (Patel v. MCI 2021 FC 573 at para 18 [“Patel“]). The LMIA process of determining whether the hiring of a foreign national will impact the labour market, is also fundamentally different than the evaluation of whether the foreign national can perform the work (Yue v. MCI 2023 FC 417 at para 5 [“Yue“]).

The decision by the officer is also subject to a high degree of deference, as set out by Manson J in Kharaud v. MCI 2022 FC 801 [“Kharaud”], at para 13

[13Subsection 200(3) of the Regulations does not stipulate a level of competence or safety. In this regard, the jurisprudence is clear: the onus is upon the applicant for a work permit to provide sufficient evidence to establish competence; that a visa officer has a wide discretion to decide this issue; and that their decision is entitled to a high degree of deference (Sangha v. Canada (MCI)2020 FC 95 [Sangha] at paragraph 42).

Here are the two main reasons for refusal, gleamed from case law (canvassed over past two years) and cases we have seen in our office:

Language and Proof of Language Issues

[1] Applicant lacks the requisite English language skills to carry out the duties and responsibilities as set out in the National Occupation Classification Code (NOC), now TEER. This has become increasingly common in the case of long-haul truck drivers, something IRCC Visa Offices are also training their officer’s to flag.

Training guide from Abu Dhabi Visa Office (redacted)

See e.g. Singh v. MCI 2023 FC 170; Patel v. MCI 2021 FC 573). The big concern in many of these cases being this notion that the applicant may have difficult following foundational occupation health and safety requirements of their position – due to their poor language test results.

See also in context of cooks and concern about their ability to read allergy labels: Sen v. MCI 2022 FC 777 [“Sen“].

See also in context of caregivers and an interview with IRCC where the Applicant was found not able to communicate – Kaur v. MCI 2022 FC 443 (see also, Kaur v. MCI 2022 FC 30)

Recently, I have consulted in my coaching practice where practitioners commonly send recently LMIA-approved applicants to POE – the ability to converse at same level as test results (if any) is definitely a live issue. Does your client present well? Can they speak under stress? Why do they need to go to POE (urgency?) What are the risks?

See also failure to provide IELTS results (vis-a-vis a previous consultant and a contested affidavit in FC) in Iqbal v. MCI 2022 FC 727.

I really do like Diner J’s decision in Singh v. MCI 2022 FC 692, where he found the officer’s emphasis on the missing IELTS exams without pointing to how they would not allow the applicant to perform the work requirements. Diner J writes:

[11] The Respondent鈥檚 policy guideline Foreign Workers: Assessing language requirements (鈥淕uideline鈥) indicates that under R200(3)(a), officers should not limit their assessment of language requirements, or the other requirements to perform the work sought, to those described in the LMIA. Instead, language requirements stated in the LMIA should form part of the assessment, which can also consider other factors, like the terms of the actual job offer.

[12] IELTS test results are described by the policy as one means of assessing language ability, but where an officer decides to require proof of language ability, the officer is supposed to determine the precise level of language ability required with reference to the LMIA, in addition to working conditions described in the job offer. The Guideline concludes that GCMS 鈥渘otes must clearly indicate the officer鈥檚 language assessment, and in the case of a refusal, clearly show a detailed analysis on how the applicant failed to satisfy the officer that they would be able to perform the work sought鈥.

[13] Here, the Officer鈥檚 finding appears to have been entirely based on the absence of IELTS language test results. While I acknowledge that the LMIA does make reference to English verbal and written language requirements, albeit without reference to any particular degree of proficiency, the Officer does not appear to take into consideration the fact that the Applicant had already successfully performed the exact same work he was seeking to perform in Canada for almost two years preceding his work permit application. Xpro鈥檚 letter confirmed the Applicant had already performed exactly the same work for nearly two years, with the same responsibilities, as a long-haul truck driver based in British Columbia, the same location where he was to be based under his new LMIA.

[14] The Guideline is not binding on officers, but it is instructive to the Court on the assessment the Officer was meant to conduct. The Respondent essentially submits that it is reasonable for an officer to expect evidence of English language skills where such skills are necessary to the performance of the work (Sun v. Canada (Citizenship and Immigration)2019 FC 1548). Indeed it is, but the Regulations are concerned with the performance of the work, and as the Guideline suggests, an officer should look beyond the LMIA to the nature of the work itself and consider the precise level of language required. That did not occur in this case.

[15] It may have been open to the Officer to come to the same conclusion in spite of the evidence on the record, if the Decision to do so were justified, such that the Officer had included rationale as to why the Applicant would not be able to perform the work requirements under his new LMIA. However, without reconciling the finding with clear evidence that runs to the contrary, in terms of the Applicant鈥檚 prior work experience, the Decision lacks justification and is thus unreasonable (Gill v. Canada (Citizenship and Immigration)2020 FC 934).

For probably the best ‘layout of the law’ on language requirements especially reprimanding an officer assessment that ignore IELTS requirements being met and choosing not to interview – see paras 11 -19 of Manson J’s decision in Sandhu v. MCI 2022 FC 301. Also, see FC cases criticizing where Officer’s do not tie language concerns with actual requirements of the work – e.g. Safdar v. MCI 2022 FC 189.

Lack of Evidence of Required Work Experience

[2] A lack of evidence of the Applicant meeting the work experience requirements of the NOC – for example work in an unrelated field or shortcomings in the evidence to support past work experience.

See e.g. case of Bhullar v. MCI 2023 FC 530 [“Bhullar“] – Go. J – dismissed – issues with supporting evidence/paystubs for previous work experience in field.

See also: Khaurad – Manson J – allowed, where it appears counsel did an effective job laying out the employment requirements, evidence for performing duties, explained the tax issues, and highlighted mistakes made by Officer on the factual record (see: paras 15-16). Same issue in Sangha v. MCI 2022 FC 309 where officer ignored evidence of requirements being met.

See also: Mindov v. MCI 2022 FC 724 – Sadrehashemi J – dismissed – contracted salesperson experience not equivalent to retail sales experiences at increasing levels of responsibility finding upheld as reasonable.

See: Musiker v. MCI 2021 FC 1092 – per McHaffie J – “it was reasonably open to the Officer to conclude that this experience was not sufficiently relevant to the requirements of the position, which related to occupational health and safety hazards and governmental regulation in that area” (at para 3)

Sector Specific Concerns

It appears from our review that certain sectors – again long-haul truck driving (Singh, Patel) but also the food service industry, particularly for supervisors (Bhullar, Yue, and Sen) and caregivers (. If the LMIA-position/duties have a health and safety component, the possibility that language ability may be negatively re-evaluated should be considered.

See: Singh v. MCI 2022 FC 80 – Pamel J – dismissed – long-haul truck driver – experience did not coincide with resume, deficient record of history, of compliance – road safety of primary concern.

Veiled Credibility Finding

This area has and will implicate the thin, grey line between cases on insufficiency of evidence and cases where there is a credibility concern that requires the provision of a procedural fairness letter. I think this is because, at the heart of the enquiry, this does require an Officer to find that an Applicant is not able to perform a job they are making representations they can perform. While the easiest way (and preferred way) to get there is to say there was something missing in proof, it is hard to parse out the overall belief the Officer has that the Applicant is unable to perform the job as a matter of credibility.

This fact scenario plays out in the FC decision of Bhatti v. MCI 2022 FC 1757 . In this case, the applicant, Bhatti, provided supporting affidavits, including by third-parties, and letters confirming employment for over 10 years. The reviewing officer raised concerns in their reasons about the affidavits containing similar language and being made on the same day, but was silent to weight assigned and was limited to factual observations rather than reasons for not taking into account/discounting them (para 10)

The Officer writes at para 13:

In my view, the Officer simply noted the evidence, or aspects of it, without explaining why it did not satisfy the Officer of the Applicant鈥檚 experience as a hairstylist.

In this case, per para 17-18, Fuhrer J did find a procedural fairness breach by failing to notify the applicant of credibility concerns.

Takeaways

Even in this day and age of parred down applications with limited upload space, it is important to recognize in advance where a position may implicate R.200(3) IRPR concerns and require additional front end evidence, beyond self-serving evidence, to establish the applicants ability to perform the duties and requirements. There also seems to be a few lines of jurisprudence on the issue of language, the weight of IELTS exams, and on the issue of work experience – where credibility assessments and insufficiency of evidence findings meet.

TL/DR: Expect a lot of litigation in this area of R.200(3) IRPR, still, moving forward.

About Us

Heron Law Offices is located in the quaint and culturally vibrant neighbourhood of Mountainview. We can be found on the corner of 33rd and Fraser Street with ample free street parking.

We have capacity and technology to assist clients all over Canada and the world utilizing secure cloud-based solutions.

CONTACT US

We're here to help you

Fill out the form below or email me at info@vancouverimmigrationblog.com

    Translate 禄