Refused a Work Permit

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BEN AZIMI /
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Refused a Work Permit

Reasons Work Permits Are Refused And How You Can Change It

A work permit is a document issued by Immigration, Refugees and Citizenship Canada (IRCC) that authorizes a foreign national to enter and remain in the country for the purpose of working for an eligible Canadian employer. A work permit has a validity period, being a range within which the authorization is effective.

A generic work permit specifies what particular employer the applicant may work for, for what period of time and in what location. A spousal open work permit is where the applicant has a spouse who either works or is an international student in Canada and it would allow the applicant to work for any employer in Canada.1 A start-up business visa is where the applicant has a plan to start a new business in Canada, either has a favorable Labour Market Impact Assessment or is exempt from one, and has a commitment certificate and letter of support from a designated entity such as a venture capital fund, angel investor group or business incubator.2

An application for a work permit involves putting together and submitting official forms and supporting documents. It is up to each applicant if they want to do that themselves or seek qualified assistance. IRCC employees called visa officers decide such applications.

Usually, the decision process only involves an examination of the submitted documents. The case law states, however, that in certain circumstances, such as if the visa officer is questioning the applicant’s credibility, then the visa officer should extend an interview or procedural fairness letter notifying the applicant of the concerns and giving an opportunity to respond to such concerns.

At the end of the processing, a decision letter is mailed out to the applicant telling them if their application has been granted or not. In addition, the visa officer records more detailed reasons in the IRCC’s electronic database, the Global Case Management System, the relevant portion of which may be accessed.

Reasons for why a work permit may be refused encompass not only general reasons that can apply to refusals of all other temporary resident visas (such as insufficient funds or not satisfying the visa officer the applicant would leave Canada after the period of authorized stay), but also reasons that are specific to the type of work permit category.

• For a generic work permit, the visa officer may doubt that the applicant possesses appropriate qualifications and experience for the proposed work role. Alternatively, the visa officer may doubt whether the job offer is valid. (These concerns may be alleviated by providing with the application materials, in the first instance, evidence of one’s qualifications such as a copy of a diploma or transcript, and, in the second instance, a copy of the employment contract).

• For a spousal open work permit, the visa officer may question the genuineness of the relationship. (Evidence of genuineness may include a marriage certificate, records of communications, photographs of the couple, joint property or children). Another reason for refusal is if there is a lack of proof that the spouse either works or is a student. (Evidence for these points is, if the spouse works, a copy of the spouse’s work permit or pay stubs, or, if the spouse is a student, an enrolment letter or receipt of tuition fee payment).

• For a start-up business visa, if the applicant had been relying on an exemption from a Labour Market Impact Assessment (such as if their business would provide a significant social, cultural or economic benefit to Canada), the visa officer may challenge whether the exemption applies. Alternatively, the visa officer may question whether the applicant has sufficient funds based on the low-income cut-off levels that apply to this category.

Applicants have the following available options if they receive a refusal:

a) improving the application and reapplying; or

b) appealing (also called in this legal context, judicial review).

Reapplying may be a good option, for instance, if the problem identified by the visa officer is simple and involves an absent document that can be easily provided the next time. However, if the visa officer’s refusal is unreasonable or not in accordance with rules of procedural fairness, judicial review may be the better course.

Judicial review is commenced by way of an application to the Federal Court. There is a limitation period within which an application must be filed, starting from the date of refusal, and ending depending on whether the matter arose inside or outside Canada. An application record is filed and the Court decides whether to grant leave. If leave is granted, a hearing is conducted. At the hearing, the applicant’s counsel and IRCC’s counsel argue about whether the visa refusal was reasonable or not and whether the IRCC’s processing adhered to principles of procedural fairness.

The best-case scenario is that the judge would set aside the refusal decision and send the application back to another visa officer to reconsider it. Judicial review usually takes one year.

Azimi Law has experience assisting applicants pursue legal remedies of work permit refusals. In a consultation, we thoroughly review the case and outline the different options and their advantages and disadvantages. We also offer representation in challenging the refusal.