Date: 20101130
Docket: IMM-6455-09
Citation: 2010 FC 1206
Ottawa, Ontario, November 30, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
SYED IMAM HASAN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns the correct interpretation of the regulations that
a visa officer is required to apply in determining the “education” component of
a person’s application to become a permanent resident of Canada as a “Federal
Skilled Worker”. Most recently, two decisions of the Court on this issue have
been placed before the Federal Court of Appeal on the same certified question
and which, it is agreed by Counsel in the present Application, express a
majority of opinion in previously decided cases. However, upon hearing the
present Application, and considering the regulations in question in their full
context, I am strongly of the opinion that the existing majority view in the
jurisprudence is not a precedent for determining the present Application.
[2]
With
respect to the cardinal principle of comity that substantially similar decisions rendered by Judges of the Court
should be followed in the interest of advancing certainty in the law, I find an
exception in the present circumstances. In my opinion, the two decisions on
which certified questions have been posed, and which are representative of many
others with respect to the interpretation of the education component of the
Federal Skilled Worker category, fail to consider the correct application of a
particular provision of the Regulations which, in the circumstances
presently under consideration, would have, in my opinion, produced a different
result (see: Almrei v. Canada (Minister of Citizenship and Immigration and
Minister of Public Safety and Emergency Preparedness), 2007 FC 1025 at
paras. 61 – 62).
[3]
To settle the interpretation
question, I believe that the Federal Court of Appeal should have the benefit of
this, a different perspective, on the certified questions already placed before
it.
I. Introduction
[4]
The
Immigration and Refugee Protection Act (IRPA) and the
Immigration and Refugee Protection Regulations (SOR/2002-227) (Regulations)
provide the possibility of permanent residency in Canada to a category
of applicants known as the Federal Skilled Worker Class (IRPA: s. 12(2)).
The Federal Skilled Worker category is “prescribed as a class of persons who
are skilled workers and who may become permanent residents on the basis of
their ability to become economically established in Canada and who intend to
reside in a province other than the Province of Quebec” (Regulations: s.
75 and s. 76).
[5]
In
April 2009, the Applicant, Syed Imam Hasan, a citizen of Bangladesh, submitted
an application for permanent residency in Canada as a Federal
Skilled Worker. Federal Skilled Worker applicants are required to obtain or
exceed a total of 67 points allocated in the categories of age, education,
official language proficiency, experience, arranged employment, and adaptability.
In October 2009, Mr. Hasan’s application was rejected by a Visa Officer at the
Canadian High Commission in Singapore who awarded him only a
total of 64 points, three points short of the 67 point threshold.
[6]
In
the present Application, Mr. Hasan challenges the Visa Officer’s decision, the
principal focus being on the points awarded in the education category; Mr.
Hasan was awarded only 22 out of a possible 25 points. Mr. Hasan possesses
three university degrees, being a Bachelor of Commerce degree awarded in April 1993,
a Master of Commerce in Management degree awarded in August 1998, and an
Executive Master of Business Administration in Marketing degree awarded in
December 2008, and argues that, based on his last degree and the fact that he
has completed in excess of 18 years of full-time education studies, he is
entitled to be awarded the full 25 points.
[7]
The
success of Mr. Hasan’s argument is based on the correct interpretation of the Regulations
which apply to the education category. For the purposes of the present
Application, the critical elements of the Regulations are s. 73 and s.
78 which are quoted in the “Addendum” to these reasons.
II. The Visa
Officer’s Decision
[8]
In
the decision rendered, the Visa Officer made the following finding:
You obtained 22 points for education
based on the evidence that your highest credential is a Master’s degree with
the equivalent of 16 years of full-time education leading up to the completion
of your highest degree (your 2 Masters [sic] degrees separately), in a
recognized post-secondary institution. Note that you cannot cumulate more
years of education by having 2 credentials at the same level.
[Emphasis added]
(Application Record, p. 6)
[9]
This
finding is elaborated upon in the Visa Officer’s affidavit, dated February 11,
2010, filed unopposed in the present Application:
I considered the applicant’s
education history and concluded that none of his two Masters [sic] Degrees
(commerce and business administration) was in the line of progression towards
the other. I therefore awarded the maximum points for the years of study
leading up to his highest university credential (any of his two Masters [sic] Degrees
taken separately) which is 16 years of full time education and I awarded 22
points for education.
In addition, in the affidavit the Visa
Officer quotes from computer generated notes to substantiate the conclusion
that either of Mr. Hasan’s two Master’s degrees take 16 years of study to
complete:
Information found on UNESCO’s
website confirms that under the Bangladesh
educational system, a Master’s degree level studies amounts to the equivalent
of 16 years of full education.
(Affidavit, p. 1 and p. 3)
[10]
With
respect to Mr. Hasan’s “highest university credential”, Counsel for Mr. Hasan
agrees that each of his two Master’s degrees are equivalent in the sense that
each takes two years to complete and that the commerce degree is not a
requisite to the business administration degree. However, what is contested is
the Visa Officer’s choice of awarding points with respect to the commerce
degree rather than the business administration degree. It is this choice that
is the subject matter of the statutory interpretation question at the heart of
the present Application.
III. Statutory
Interpretation
[11]
The
statutory interpretation question is whether the factors of attaining a
Master’s or Doctoral degree and completing the requisite full time studies stated
in s. 78(2)(f) of the Regulations should be read conjunctively or
disjunctively. The Visa Officer decided on the former interpretation. With the
exception of Justice Mandamin’s decision in McLachlan v. Canada (Minister of
Citizenship and Immigration), 2009 FC 975, this conclusion conforms with the
opinion expressed in previously decided cases of the Court, the most recent of
which are Justice Heneghan’s decisions in Khan v. Canada (Minister of
Citizenship and Immigration), 2010 FC 983, and Kabir v. Canada (Minister
of Citizenship and Immigration), 2010 FC 995. Because these decisions
concern applicants who offered two Master’s degrees as credentials, they are
central to the analysis which follows.
[12]
The
interpretation of the Regulations adopted in Khan and Kabir,
and applied by the Visa Officer in the present case, is based on emphasis
placed on the words of s. 78(3)(a) that education points “shall not be awarded cumulatively
on the basis of more than one single educational credential”. As the reasoning goes
behind not awarding “double points” because an applicant has two Master’s
degrees, if it takes only 16 years to attain a first Master’s degree and this
degree is not a prerequisite to a further Master’s degree attained, points are
to be awarded on the basis of only the first Master’s degree with no
consideration being given to the second Master’s degree. Justice Heneghan’s
finding in Khan at paragraph 14 emphasizes the point:
The language of subsection
78(3) is clear. No points can be awarded for two Master’s degrees. The
Applicant completed 19 years of full-time studies but only 16 years were
required in Bangladesh in order to obtain a Master’s
degree. He falls within the scope of paragraph 78(2)(e). No reviewable error
was committed by the Officer. This case is parallel to the decision in Bhuiya
v. Canada (Minister of Citizenship and
Immigration),
2008 FC 878.
In Kabir at paragraph 14, Justice
Heneghan makes a similar statement. The Visa Officer in the decision presently
under review came to the same conclusion by awarding only 22 points and not the
full 25 points pursuant to s. 78(2)(f). Counsel for the Respondent explains
that, as a matter of practice, the 22 points awarded to Mr. Hasan is based on
the application of the “OP6 – Federal Skilled Workers Manual” which visa
officers consult: if under s. 78(2)(f) a person has a Master’s degree but only
the imputed 16 years of education to obtain it, points are awarded according to
the next highest category being s. 78(2)(e) (Respondent’s Further Memorandum of
Argument, paras. 12 and 13).
[13]
Since
Justice Heneghan specifically relies on Justice Mactavish’s decision in Bhuiya,
I find a comment is necessary about the evidence of legislative intention
relied upon to reach the conclusion in that case.
[14]
The
education component of Ms. Bhuiya’s application for permanent residence as a
Skilled Worker was a Master’s degree in Commerce which took 16 years to attain
and a diploma in personnel management which took a year to attain. Justice
Mactavish applied s. 78(3)(b)(i) to conclude that the credential that results
in the highest number of points is the Master’s degree which took 16 years to
complete and points were awarded accordingly. Because he has two Master’s
degrees, the factual matrix of Mr. Hasan’s application presently under
consideration is more complex from that presented by Ms. Bhuiya, and, as a
result, the factual finding in her case is not a precedent to guide the outcome
of his case. However, the decision is cited as precedent for its conclusion on
legislative intention.
[15]
In
Bhuiya, Justice Mactavish refers to the Regulatory Impact Assessment
Statement (RIAS) relating to the Regulations and makes this finding at
paragraphs 17 to 19:
In this case, a review of the RIAS discloses that the reason for
requiring that a candidate have both a particular degree and a
specified number of years of education was to promote consistent standards in
the assessment of a candidate’s education and training, given the range of
education and formal training systems around the world.
The RIAS uses a Master’s degree as an example, noting that to qualify for
the maximum number of points for a Master’s the candidate must also have 17
years of education. In other words, the years of education requirement is
clearly intended to establish minimum standards for each type of degree.
The fact that Ms. Bhuiya may have spent one additional year in school
after obtaining her Master’s degree does not turn her 16 year Master’s degree
into a 17 year Master’s degree.
[Emphasis added]
[16]
The
RIAS that Justice Mactavish is referring to is quoted by Justice Russell in Healey
v. Canada (Minister of
Citizenship and Immigration, 2009 FC 355 at paragraph 35 as follows:
…Another
change to the Education factor is the manner in which points will be allocated
for each credential level. The applicant is allocated points for education
on the basis of having both a credential (such as a diploma, degree, or
apprenticeship certificate) and a minimum number of years of education and
formal training. For example, for a Master’s degree, an applicant must
also have completed a total of at least 17 years of full-time or full-time equivalent
studies. Given the range of educational and formal training systems around
the world, this mechanism will serve to promote consistent standards in the
assessment of education and training while still placing emphasis on the
essentials - a credential as well as relevant minimum levels of education and
formal training.
[Emphasis
added]
[17]
With
respect, it is not at all clear that the comment in the RIAS with respect to
completing 17 years of full-time studies refers just to the Master’s degree or
generally to the applicant’s complete study history. There is no clear
statement in the IRPA or the Regulations, or in the RIAS for that
matter, that when two Master’s degrees are presented as credentials by an
applicant, the complete study history of the applicant cannot be considered.
This point is made by Justice Mandamin in McLachlan at paragraph 30: “in
my view the whole of section 78 of the IRPA Regulations is directed at
assessment of educational accomplishment”.
[18]
In
my opinion, the lack of clarity in the Regulations has caused visa
officers to adopt a self-help approach. The importation of the non-legislative
notion of “line of progression” seems to be an attempt to bring clarity to the
unclear. It might bring clarity and certainty to the decision-making of visa
officers under the Regulations, but that is not the point. The question
is whether it is lawful to do so.
[19]
Counsel
for Mr. Hasan argues that the decisions in Khan and Kabir neglect
to address the operation of s. 78(3)(b)(i) which states that points are to be
awarded, including under s. 78(2)(f), “on the basis of the single educational
credential that results in the highest number of points”. As the argument goes,
in order for this legislative intention to operate to provide a benefit to an
applicant with two Master’s degrees, the factors named in s. 78(2)(f) must be
read disjunctively. That is, if an applicant such as Mr. Hasan has two Master’s
degrees and a total of 17 years or more of full-time studies in his or her complete
academic history, the last of the degrees must be assessed together with the
applicant’s complete academic history. In my opinion, this is the correct
approach.
[20]
It
is important to note that in both Khan and Kabir, the quotation
of the Regulations provided includes a citation of s. s. 78(3)(b)(i),
but no critical analysis is provided regarding the impact of the provision on
the circumstances under consideration. Accordingly, I find that Khan and
Kabir are not precedents to apply in the present case.
IV. Result
[21]
I
agree with Counsel for the Applicant that the failure to consider the correct application of s. 78(3)(b)(i)
of the Regulations by the Visa Officer in the present case constitutes
an error of law which warrants setting the decision aside and the certifying of
a question for consideration by the Federal Court of Appeal.
ORDER
THIS COURT ORDERS that the decision
under review is set aside and the matter is referred back for re-determination
by a different visa officer.
By the consent of Counsel for Mr. Hasan and
the Respondent, because it is of general importance and determinative of the
present Application, I certify the same question for consideration by the
Federal Court of Appeal as that certified in Khan and Kabir:
In assessing points for
education under s. 78 of the Immigration and Refugee Protection Regulations,
does the visa officer award points for years of full-time equivalent studies
that did not contribute to obtaining the educational credential being assessed?
“Douglas R. Campbell”
ADDENDUM
Sections 73 and
78 of the Regulations set out the procedure by which points are to be
awarded in the education category.
“Educational
credential” is defined in s. 73 of the Regulations as follows:
|
“educational credential”
« diplôme »
“educational credential” means any diploma, degree or
trade or apprenticeship credential issued on the completion of a program of
study or training at an educational or training institution recognized by the
authorities responsible for registering, accrediting, supervising and
regulating such institutions in the country of issue.
|
« diplôme »
“educational credential”
« diplôme » Tout diplôme, certificat de
compétence ou certificat d’apprentissage obtenu conséquemment à la réussite
d’un programme d’études ou d’un cours de formation offert par un
établissement d’enseignement ou de formation reconnu par les autorités
chargées d’enregistrer, d’accréditer, de superviser et de réglementer les
établissements d’enseignement dans le pays de délivrance de ce diplôme ou certificat.
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Section 78 of the Regulations reads as follows:
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Selection Grid
Definitions
78. (1) The definitions in this subsection apply
in this section.
“full-time”
« temps
plein »
“full-time” means, in
relation to a program of study leading to an educational credential, at least
15 hours of instruction per week during the academic year, including any
period of training in the workplace that forms part of the course of
instruction.
“full-time equivalent”
« équivalent
temps plein »
“full-time equivalent” means, in
respect of part-time or accelerated studies, the period that would have been
required to complete those studies on a full-time basis.
Education (25 points)
(2) A maximum of 25 points shall be awarded for a skilled worker’s
education as follows:
(a) 5 points for a secondary school educational credential;
(b) 12 points for a one-year post-secondary educational
credential, other than a university educational credential, and a total of at
least 12 years of completed full-time or full-time equivalent studies;
(c) 15 points for
(i) a one-year post-secondary educational credential, other than a
university educational credential, and a total of at least 13 years of
completed full-time or full-time equivalent studies, or
(ii) a one-year university educational credential at the bachelor’s
level and a total of at least 13 years of completed full-time or full-time
equivalent studies;
(d) 20 points for
(i) a two-year post-secondary educational credential, other than a
university educational credential, and a total of at least 14 years of
completed full-time or full-time equivalent studies, or
(ii) a two-year university educational credential at the bachelor’s level
and a total of at least 14 years of completed full-time or full-time
equivalent studies;
(e) 22 points for
(i) a three-year post-secondary educational credential, other than a
university educational credential, and a total of at least 15 years of completed
full-time or full-time equivalent studies, or
(ii) two or more university educational credentials at the bachelor’s
level and a total of at least 15 years of completed full-time or full-time
equivalent studies; and
(f) 25 points for a university educational credential at the
master’s or doctoral level and a total of at least 17 years of completed
full-time or full-time equivalent studies.
Multiple educational achievements
(3) For the purposes of subsection (2), points
(a) shall not be awarded cumulatively on the basis of more than
one single educational credential; and
(b) shall be awarded
(i) for the purposes of paragraphs (2)(a) to (d),
subparagraph (2)(e)(i) and paragraph (2)(f), on the basis of
the single educational credential that results in the highest number of
points, and
(ii) for the purposes of subparagraph (2)(e)(ii), on the basis of
the combined educational credentials referred to in that paragraph.
Special circumstances
(4) For the purposes of subsection (2), if a skilled worker has an
educational credential referred to in paragraph (2)(b), subparagraph
(2)(c)(i) or (ii), (d)(i) or (ii) or (e)(i) or (ii) or
paragraph (2)(f), but not the total number of years of full-time or
full-time equivalent studies required by that paragraph or subparagraph, the
skilled worker shall be awarded the same number of points as the number of
years of completed full-time or full-time
equivalent studies set out in the paragraph or subparagraph.
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Grille de sélection
Définitions
78. (1) Les
définitions qui suivent s’appliquent au présent article.
« équivalent temps plein »
“full-time equivalent”
« équivalent temps plein » Par
rapport à tel nombre d’années d’études à temps plein, le nombre d’années
d’études à temps partiel ou d’études accélérées qui auraient été nécessaires
pour compléter des études équivalentes.
« temps plein »
“full-time”
« temps plein » À
l’égard d’un programme d’études qui conduit à l’obtention d’un diplôme,
correspond à quinze heures de cours par semaine pendant l’année scolaire, et
comprend toute période de formation donnée en milieu de travail et faisant
partie du programme.
Études (25 points)
(2) Un maximum de 25 points d’appréciation sont attribués
pour les études du travailleur qualifié selon la grille suivante :
a) 5 points, s’il a obtenu un diplôme d’études
secondaires;
b) 12 points, s’il a obtenu un diplôme postsecondaire —
autre qu’un diplôme universitaire — nécessitant une année d’études et a
accumulé un total d’au moins douze années d’études à temps plein complètes ou
l’équivalent temps plein;
c) 15 points, si, selon le cas :
(i) il a obtenu un diplôme postsecondaire — autre qu’un
diplôme universitaire — nécessitant une année d’études et a accumulé un total
de treize années d’études à temps plein complètes ou l’équivalent temps
plein,
(ii) il a obtenu un diplôme universitaire de premier
cycle nécessitant une année d’études et a accumulé un total d’au moins treize
années d’études à temps plein complètes ou l’équivalent temps plein;
d) 20 points, si, selon le cas :
(i) il a obtenu un diplôme postsecondaire — autre qu’un
diplôme universitaire — nécessitant deux années d’études et a accumulé un
total de quatorze années d’études à temps plein complètes ou l’équivalent
temps plein,
(ii) il a obtenu un diplôme universitaire de premier
cycle nécessitant deux années d’études et a accumulé un total d’au moins
quatorze années d’études à temps plein complètes ou l’équivalent temps plein;
e) 22 points, si, selon le cas :
(i) il a obtenu un diplôme postsecondaire — autre qu’un
diplôme universitaire — nécessitant trois années d’études et a accumulé un
total de quinze années d’études à temps plein complètes ou l’équivalent temps
plein,
(ii) il a obtenu au moins deux diplômes universitaires de
premier cycle et a accumulé un total d’au moins quinze années d’études à
temps plein complètes ou l’équivalent temps plein;
f) 25 points, s’il a obtenu un diplôme universitaire de
deuxième ou de troisième cycle et a accumulé un total d’au moins dix-sept
années
d’études à temps plein complètes ou l’équivalent temps
plein.
Résultats
(3) Pour l’application du paragraphe (2), les points
sont accumulés de la façon suivante :
a) ils ne peuvent être additionnés les uns aux autres du
fait que le travailleur qualifié possède plus d’un diplôme;
b) ils sont attribués :
(i) pour l’application des alinéas (2)a) à d),
du sous-alinéa (2)e)(i) et de l’alinéa (2)f), en fonction du
diplôme qui procure le plus de points selon la grille,
(ii) pour l’application du sous-alinéa (2)e)(ii),
en fonction de l’ensemble des diplômes visés à ce sous-alinéa.
Circonstances spéciales
(4) Pour l’application du paragraphe (2), si le
travailleur qualifié est titulaire d’un diplôme visé à l’un des alinéas (2)b),
des sous-alinéas (2)c)(i) et (ii), (2)d)(i) et (ii) et (2)e)(i)
et (ii) ou à l’alinéa (2)f) mais n’a pas accumulé le nombre d’années
d’études à temps plein ou l’équivalent temps plein prévu à l’un de ces
alinéas ou sous-alinéas, il obtient le nombre de points
correspondant au nombre
d’années d’études à temps plein complètes — ou leur
équivalent temps plein — mentionné dans ces dispositions.
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[Emphasis added]
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