Date: 19990126
Docket: IMM-4064-98
BETWEEN:
SHEIKH SAZZADUL AZIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.
[1] The applicant seeks an order quashing a decision of a visa officer refusing the applicant's application for landed immigrant status. That decision is based on a finding that the applicant's B.Sc. degree from Government Jagannath College, University of Dhaka, Bangladesh is not a bachelor's degree as that term is used in the National Occupational Classification Career Handbook.
[2] The applicant applied for landing in Canada as a skilled worker, his intended occupation being that of textile chemist. A visa officer is required by the Immigration Regulations, 1978, SOR/78-172, to assess an application by a person in the position of this applicant, in accordance with Schedule I of the Regulations. Column I of that Schedule lists factors relevant to the applicant that are to be assessed: (1) education; (2) education and training; (3) experience; (4) occupational factor; (5) arranged employment or designated occupation; (6) demographic factor; (7) age; (8) knowledge of English and French; (9) personal suitability.
[3] Schedule I contains in Column II the criteria to be applied by a visa officer in assessing an applicant under each of the above headings. Under the education factor the points to be awarded vary with the level of education an applicant has achieved. For example, a person with no secondary school diploma receives zero points; a person with a secondary school diploma that does not lead to university entrance is awarded five points; a person with a secondary school diploma that does lead to university entrance is awarded 10 points. A person holding a diploma that requires one year of full-time classroom study where a condition of admission to the course is the completion of a secondary school diploma leading to university entrance is given 13 points. A person having a first-level university degree that requires at least three years of full-time study is awarded 15 points.1
[4] The applicant's B.Sc. degree was obtained after two years of study. Thus, he has a degree that was obtained after at least one year of full-time study. He did not hold a first-level university degree that required at least three years of full-time study to complete. He was awarded 13 points for the level of education he had achieved. Counsel for the applicant agrees that this assessment is accurate.
[5] An applicant must also be assessed under the fourth factor listed above, the occupational factor. An applicant must obtain at least one point of assessment under that factor to be considered for landing.
[6] The relevant portion of the Immigration Regulations, Schedule I reads:
| 4. Occupation- (1) Units of assessment shall be awarded on the basis of |
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| al Factor employment opportunities in Canada in the occupation |
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| (a) for which the applicant meets the employment requirements for Canada as set out in the National Occupational Classification; |
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| (b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and |
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| (c) that the applicant is prepared to follow in Canada. |
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| (2) The employment opportunities shall be determined by taking into account labour market activity on both an area and a national basis, following consultation with the department of Human Resources Development, provincial governments and any other relevant organizations and institutions. |
[7] The National Occupational Classification (NOC) is a catalogue of occupations in Canada prepared by Human Resources Canada. It sets out a description of, and the requirement to be met in order to engage in, the occupations that are described. Chapter 2112 describes the occupation of chemist, including textile chemists, and states that a bachelor's degree in chemistry, biochemistry or a related discipline is a minimum qualification for the occupation:
| " A bachelor's degree in chemistry, biochemistry or in a related discipline is required. |
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| " A master's or doctorate degree is usually required for employment as a research chemist. |
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| " Licensing through the Ordre des chimistes du Québec and membership in the professional corporation for chemists is mandatory for chemists who work in Quebec. |
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[8] The NOC is also referred to under the second factor of Schedule I to the Immigration Regulations, the education and training factor. The points to be awarded under that factor are:
| (1) To be measured by the amount of formal education and professional, vocational, apprenticeship, in-plant or on-the-job training specified in the National Occupational Classification as being necessary to acquire the information, techniques and skills required for the occupation in which the applicant is assessed under item 4. Units of assessment shall be awarded as follows: |
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| (a) when no formal education or training is required, one unit; |
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| (f) when a university degree at the bachelor's level is required, seventeen units; . . . |
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[9] As noted, the applicant's B.Sc. degree was obtained after two years of study, not three. The visa officer therefore did not consider this to be a bachelor's degree as described in the NOC. He considered that a bachelor's degree for the NOC purposes and for the assessment of the occupational factor in Schedule I required three years of full-time study. The visa officer concluded that the applicant did not have the minimum educational requirements for his intended occupation in Canada. The applicant was not awarded any points under the occupational factor and his application was therefore not approved.
[10] The visa officer's letter to the applicant reads in part:
| My assessment of your occupation was conducted according to the National Occupational Classification. You requested assessment in the following occupation : Chemist (textile), NOC 2112.0 |
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| I have carefully assessed and investigated your training and experience in the occupation listed above based on the information you provided in your application, and have concluded that you are not qualified to work in this occupation in Canada, as you do not have the minimum qualifications specified in the National Occupational Classification. A bachelor's degree in chemistry, biochemistry or a related discipline is required. A bachelor's degree is defined to be a university degree that requires completion of at least three years of full-time study. Your degree was acquired in under two years. I have therefore determined that you do not qualify for selection as a chemist. |
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[11] The applicant's argument is that the visa officer proceeded on the basis of an error of law. He argues that the NOC contains no definition of a bachelor's degree, and that the educational factor and the occupational factor in Schedule I are completely separate. He argues that there is nothing that links the 15 points for a three-year degree, under the educational assessment, to the term bachelor's degree in the NOC, and that in the absence of any express definition in either the Regulations, NOC or the policy guidelines, the visa officer should not have restricted the definition of a bachelor's degree to only a degree acquired upon completion of three years of full-time study.
[12] Counsel for the respondent's position is that the visa officer did not err. He argues that it would be inconsistent for a person to obtain less that the 15 points under the educational factor, because a first-level university degree that requires at least three years of full-time study had not been completed, but to find that the person had obtained a bachelor's degree for the purposes of the occupational factor. He argues that the applicant's position would mean that a visa officer would have to accept any piece of paper that carries the title bachelor's degree even if it only required, for example, six months of study. Counsel argues that it was not unreasonable for the visa officer to have acted as he did and to have interpreted the requirement for a bachelor's degree set out in the NOC as a first-level university degree that required at least three years of full-time study to acquire.
[13] There are several considerations that lead me to conclude that counsel for the applicant's argument is the better one. The text of the criteria that are to be addressed under the education factor in Schedule I of the Regulations refers to a first-level university degree that "requires at least three years of full-time study". This suggests that not all first-level university degrees require three years of full-time study. Also, "three years of full-time study" in the Canadian context means three eight-month periods with four months off between each period. In addition, as noted, while the reference under the occupational factor to the NOC only indirectly brings in a reference to a bachelor's degree, subsection (1)(f), the education and training factor of Schedule I of the Regulations refers directly to "a university degree at the bachelor's level", not as under the education factor to "a first-level university degree that requires at least three years of full-time study." When different terminology is used in the same legislative document, one usually assumes that the difference has been noticed by the drafters, that there is a reason for the two different formulations, and that they are not intended to carry the identical meaning.
[14] I agree that the term "bachelor's degree" in both the NOC and the Regulations means a Canadian degree or equivalent. The NOC describes occupations in Canada, and the skill levels and education required to do them. The Regulations are designed to assess an applicant's likelihood of being able to integrate into the Canadian labour market. The difficulty with the Regulations and related documents, as they presently exist, is that they do not provide guidance as to what is an equivalent degree, and the Regulations use two different terms, in different contexts, one being "a first level university degree that requires three years of full-time study" and the other being "a degree at the bachelor's level". Thus, the text of Schedule I to the Regulations leaves the impression that whatever equivalence to a Canadian degree may be, it is not based on the number of years required to obtain the degree.
[15] I have not overlooked the fact that the NOC refers to a first-level university degree and that it is clear that the reference in chapter 2112 to a bachelor's degree is to a first-level university degree. This does not assist, however, because the NOC does not define a first-level university degree as one requiring three years of full-time study.
[16] It would not be difficult to amend Schedule I to the Regulations to expressly provide that when a bachelor's degree is a requirement pursuant to the NOC for a given occupation that the requirement is only fulfilled for Schedule I purposes by a degree that requires three years of study full-time. But without an express statement to that effect, I must accept counsel for the applicant's submissions.
[17] For the reasons given, the decision under review is set aside, the applicant's application for landed immigrant status is referred back for reconsideration by a different visa officer.
Judge
OTTAWA, ONTARIO
January 26, 1999
__________________
1
| Column IFactors |
Column IICriteria |
Column IIIMax. Units |
| 1. Education |
(1) Subject to subsections (2) to (4), units of assessment shall be awarded as follows:
(a) where a diploma from a secondary school has not been completed, zero units;
(b) where a diploma from a secondary school has been completed, the greater number of the following applicable units:(i) in the case of a diploma that does not lead to entrance to university in the country of study and does not include trade or occupational certification in the country of study, five units.(ii) in the case of a diploma that may lead to entrance to university in the country of study, ten units, and(iii) in the case of a diploma that includes trade or occupational certificate in the country of study, ten units;
(c) where a diploma or apprenticeship certificate that requires at least one year of full-time classroom study has been completed at a college, trade school or other post-secondary institution, the greater number of the following applicable units:(i) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(i) or (iii) as a condition of admission, ten units, and(ii) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(ii) as a condition of admission, thirteen units;
(d) where a first-level university degree that requires at least three years of full-time study has been completed, fifteen units; and
(e) where a second- or third- level university degree has been completed, sixteen units. |
16 |
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