Author: Parminder Singh, LL.B (Canada)
This is a Frequently asked Question: How to fight or appeal issues of insufficient financial assets, language ability and credibility in Canada work visa refusals ?
In Canada, visas are frequently rejected for lack of credibility, financial stability and English proficiency of an applicant. This article provides case laws and the Canada immigration operational manual guidelines to deal with these issues in a visa application. If these issues are dealt in a visa application, the chances of Canada visa refusals are reduced and the chances of winning a Canada visa refusal case in the court are increased.
ISSUE OF CREDIBILITY
Sometimes visas are rejected because the officer has concerns with respect to the credibility of an applicant. The courts have quashed visa decisions in which the officers have failed to give an opportunity to the applicant to address the issues of credibility.
Even when the concern is not with respect to credibility, the officers are required to give an opportunity to address the negative impressions. The case law is abundantly clear on these issues.
The visa officer breaches the duty of procedural fairness if he fails to provide the Applicant an opportunity to address the officer’s concerns. It is well established that visa officers assessing applications made from outside of Canada owe applicants a duty of fairness, which includes not considering extraneous information and may include alerting applicants to particular concerns arising out of the evidence tendered by the applicant. This was summarized by Mosley J. in Rukmangathan v. Canada at paragraph 22:
This requirement stops short of providing an applicant with a “running score” of any deficiencies.
Rukmangathan v. Canada, supra at para 23
In Hassani v. Canada, Mosley J. held at para 24 that a duty exists under procedural fairness to allow an applicant an opportunity to reply where the visa officer’s concern is with “credibility, accuracy or genuine nature of the information submitted by the applicant.”
Similarly, in Gedeon v. Canada, Russell J. held at para 101 that it was a reviewable error that the visa officer did not provide reasons for rejecting evidence of the applicant’s work experience and did not give the applicant an opportunity to address his concerns. Although visa officer is not required to refer to every item in the evidence tendered by an applicant, the visa officer ought to include relevant and cogent evidence tendered by an applicant in his reasoning. T
Gedeon v. Canada (Minister of Citizenship and Immigration), 2004 FC 1245 at paras 101-102; See also Wang v. Canada (Minister of Citizenship and Immigration),  F.C.J. No. 351
Sometimes a visa officer might have concerns that an applicant for work visa or student visa might not return after the expiry of their visas. This concern arises in officer’s mind because of applicant’s lack of financial stability. The officer thinks that the applicant will have financial incentive to remain in Canada. The applicant should submit in such cases that financial condition on its own cannot justify refusal of a work visa because an applicant for work permit will always apply for work visa so that he may earn more money in Canada than he can earn in his home country. He should submit quote from Rengasamy v. Canada (2009 FC 1229).
ENGLISH LANGUAGE ABILITY
The officers also reject work visa applications because of lack of English ability. In such cases the applicant should submit that an immigration officer should consider employer’s requirement in conjunction with LMO requirements while deciding what level of English would be appropriate for the performance of job duties in question. The challenges to the applicant in the the broader community, such as availing community services is beyond the scope of the current work permit legislation. It is part of Canada PR legislation where IELTS score is mandatory.
The officers are also required to conduct in house interviews or request IELTS. The operational manual specifically requires that officers should call an applicant for an interview or order him to write IELTS.
Operational Manual FW 1, s 8.3, OB170
The instructions in the operational manual with respect to language requirements find complete support in established cases and regulations. In Gurpinder Singh v. Citizenship and Immigration Canada, 2012, Justice Snider decided that apart from LMO requirement for English, the officer has erred in law where he failed to consider employer’s requirements that no English is required.
Further even where the officer has given opportunity to the applicant to prove his English level, the officer is bound to to give adequate reasons on why the applicant fell short of English requirements of the job offer. Generally, the LMO requires oral and written English but it does not inform the applicant what level of English is required. The operational manual requires that an officer should write a detailed analysis of their language assessment of an applicant.
Operational Manual FW 1, s 8.3, OB170
In Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), the Supreme Court of Canada held that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” As such, the adequacy of the Visa Officer’s reasons must be assessed and analysed along with the reasonableness of her decision as a whole. The lack of reasons offered by the Officer lend to the overall unreasonableness of her decision to refuse the Applicant’s Work Permit.