Date: 20030725
Docket: IMM-175-02
Citation: 2003 FC 916
BETWEEN:
GUSTAVO BARBOZA
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of visa officer Walter Domingos ("visa officer") from the office of the Canadian Consulate General in Sao Paulo, Brazil, dated December 5, 2001, wherein he rejected the applicant's application for permanent residence in the independent category.
[2] On February 5, 2001, the applicant, Gustavo Barboza, submitted his application for permanent residence in Canada to the Canadian Consulate General in Brazil. On November 27, 2001, the visa officer interviewed him to determine whether he met the requirements for immigration to Canada in the independent category in the occupations of Technical Sales Representative, Mechanical Engineer and Energy Advisor.
[3] On December 5, 2001, the visa officer decided that the applicant did not qualify for immigration in the requested occupations because he did not receive the minimum 70 points in the categories for which he applied. In the category of Technical Sales Representative, the applicant received 67 points. In the category of Mechanical Engineer, the applicant received 69 points. Since the applicant received zero points for the occupational factor of Energy Advisor, he could not be assessed in that category.
[4] The applicant contests his assessment in the category of Mechanical Engineer for three main reasons: First, he argues that the visa officer fettered his discretion by rejecting the application on the basis of an assessment of 69 points, without considering his discretionary powers pursuant to subsection 11(3) of the Immigration Regulations, 1978, SOR/78, as amended [hereinafter "Regulations"]. Second, the applicant asserts that the visa officer should have awarded 16 points, rather than 15 points, for education. Third, the applicant argues that the visa officer both demonstrated bias and failed to consider resourcefulness in his evaluation of the applicant's personal suitability. The applicant did not press this last point during oral presentations.
[5] This application should be allowed based on the issue of points awarded in the category of education.
[6] The applicant was awarded 15 points for education in recognition of his bachelor's degree in Engineering. Subsequently, he obtained a Lato Sensu certificate which he obtained after a year of full-time study. The program involved 19 courses including 393 hours of course work and a final paper, which he entitled "Marketing Information System." The applicant argues that this certificate corresponds to a Master's degree, thus earning him an extra point. The respondent points to the affidavit of the visa officer wherein he explained that the specialized Lato Sensu certificate is not considered a second-level degree in either Brazil or in Canada. This opinion was based on information from Brazil's Ministry of Education website.
[7] The Regulations indicate that education is to be assessed as follows:
1. Education (1) ... units of assessment shall be awarded as follows:
...
(d) where a first-level university degree that requires at least 3 years of full time study has been completed, fifteen units.
(e) where a second- or third-level university degree has been completed, sixteen points.
[8] The issue is whether the applicant's Lato Sensu certificate is equivalent to a second- or third-level university degree.
[9] A translation of the Lato Sensu certificates indicates that it represents the completion of a university graduate program in Quality Engineering. A translation of information submitted from the Ministry of Education website indicates that the Lato Sensu program is only available to "individuals who hold a diploma from an advanced course" and includes "MBA (Masters of Business Administration) or equivalent courses". As such, the information before the court supports the notion that the Lato Sensu certificate represents the completion of a graduate level program. The issue then becomes whether the fact that the applicant held a "certificate" rather than a "degree" is of any consequence.
[10] In my view, the fact that the applicant has received a certificate, rather than a degree, is not in itself a bar to the award of 16 points. In Dong v. Canada (Minister of Citizenship and Immigration), 2001 FCA 388, the Federal Court of Appeal held that it is the level of education that matters and not the number of degrees. Justice Rothstein wrote as follows at paragraph 7:
However the word "level" must be given meaning. A first, second or third level university degree implies a recognized level of study and education, not the obtaining of numbers of university degrees. If an individual has achieved that level of education which is reflected in a second level university degree, he must be awarded the number of units applicable to that level of education. This interpretation accords with the purpose of the unit assessment system, namely to determine an applicant's likelihood of successful establishment in Canada. In this context it is the level of education and not the number of degrees that is relevant.
[11] While not directly on point, this case is analogous to the issue before the court: whether the applicant must have been conferred a "degree" rather than a "certificate". A negative interpretation of the Regulations would defeat their purpose, which is the recognition of levels of education. The evidence before this court demonstrates that the Lato Sensu certificate obtained by the applicant is equivalent to a second-level degree; "only a person who holds a diploma from an advanced course" would qualify. It followed a year of intensive study in a university graduate program. Consequently, the visa officer erred in failing to award 16 points to the applicant for education.
[12] Accordingly, the application for judicial review is allowed and the matter is returned to a different visa officer for redetermination in accordance with these reasons.
JUDGE
OTTAWA, Ontario
July 25, 2003
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-175-02
STYLE OF CAUSE:
GUSTAVO BARBOZA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 26, 2003
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE ROULEAU
DATED: July 25, 2003
APPEARANCES:
Mr. Jean-François Bertrand FOR THE APPLICANT
Mr. Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Jean-François Bertrand FOR THE APPLICANT
Montreal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec
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