February 8, 2017

Common Visa Officer Errors in Work Permit Refusals

Posted by Mario Bellissimo - Bellissimo Law Group PC

Here are five common errors that we have encountered in challenging work permit refusals in cases that should not have been refused in the first place.  Work permits are issued pursuant to section 200 of the Immigration and Refugee Protection Regulations (IRPR). Subject to certain exceptions, this provision states that an Officer shall issue a work permit to Applicants who meet the relevant requirements.  Exceptions are highlighted in subsection 200(3) of the IRPR.

  1. When an applicant submits a complete work permit application and an Officer relies upon a subjective opinion of the evidence, procedural fairness is owed as the Applicant cannot foresee the Officer’s opinion and is prevented from addressing the concern(s).[1] A finding of being unable to perform the work sought is often grounded in credibility findings that are challengeable and not supported by the evidentiary record.
  1. Also where refusals are based upon other credibility findings which are grounded in subjective opinion that a worker does not intend to take up the position upon arrival in Canada, and by extension would not leave Canada at the end of the authorized stay, an Officer may well have a duty to provide an applicant an opportunity to respond to preserve procedural fairness.
  1. The fact that an Applicant’s previous work experience is in a different field than that of the prospective employment is not a legal basis for refusing a work permit application. The relevant regulations provide only that an Officer may refuse a work permit application if they reasonably believe that the foreign national is unable to perform the work sought.
  1. The Officer fails to identify what requirement(s) the Applicant failed to meet is an error. This is of particular concern when an offer of employment, the Labour Market Impact Assessment and the applicable NOC description do not identify the requirement being relied upon for the refusal. The within situation is akin to that identified by the Honourable Mr. Justice Annis in Huang, [2] where it was held to be an error to add a higher skilled requirement to a general NOC description and then rely upon the higher requirement to refuse an application. An Officer does not have “unlimited authority to probe the requirements of [an applicant’s] potential employment without an objective basis” and cannot rely solely upon  questionable or unspecified standards in assessing an Applicant’s ability to take up employment.
  1. An Officer fails to account for the fact that the Applicant is seeking employment in a position that would benefit from on-the-job training upon arrival is an error. In Randhawa, the Honourable Mr. Justice Kelen allowed the judicial review of a work permit refusal, holding:

While it is reasonable to require that an applicant satisfy the job requirements of a particular position before obtaining a work visa, it is unreasonable not to take into account some measure of job orientation that would inevitably be provided to the claimant.[3]

There are many other types of errors but this is a sampling of some of the more common refusals we have been seeing.  Ask for the reasons behind the standard form refusal and act quickly as timelines are short.  It may well be your work permit was unfairly refused.

To learn more about Work Permit Refusals click here.