Date: 20100211
Docket: IMM-552-09
Citation: 2010 FC 130
Ottawa, Ontario, February 11,
2009
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ZAFAR
SHAHID
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Mr. Zafar
Shahid applied to the High Commission in Islamabad for permanent residence in Canada as a skilled worker. An
immigration officer evaluated his application and scored him 63 points, four
points short of the threshold for success. The officer gave Mr. Shahid no
credit for his spouse’s education. Mr. Shahid argues that the officer should
have awarded him an additional four points, which would have resulted in a
successful application.
[2]
Mr. Shahid
asks me to order another officer to reconsider his application. I agree with
Mr. Shahid that the officer erred and will grant his application for judicial
review.
[3]
The only
question is whether the officer’s treatment of Mrs. Shahid’s educational
credits was reasonable.
II. Analysis
1.
The
legislative framework
[4]
An
applicant for permanent residence is entitled to be given credit for his or her
spouse’s education, according to the Immigration and Refugee Protection
Regulations, SOR/2002-227, s. 83(1)(a), (2)). The applicant should
receive four points if the spouse has “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” (s. 78(2)(d)).
“Full-time” means at least 15 hours of instruction per week. “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
(s. 78(1)).
2.
The
officer’s decision
[5]
The
officer acknowledged that Mrs. Shahid had completed secondary school and had
acquired a higher secondary certificate. He also accepted that she had obtained
a two-year university education credential at the bachelor level from the University of Karachi. However, he noted
that she was external candidate at the university and, therefore, did not meet
the requirement that she demonstrate completion of 14 years of full-time or
full-time equivalent studies.
3.
Was the
officer’s decision reasonable?
[6]
The
Minister argues that the burden fell on Mr. Shahid to satisfy the officer that
his wife met the criteria set out in the Regulations. The evidence showed that
Mrs. Shahid had completed a two-year university degree and wrote examinations
in her first and second years. It is not clear from the record whether a
further piece of evidence from the university, which had been submitted as part
of a request for reconsideration of an earlier failed application, was before
the officer. That letter stated that Mrs. Shahid had achieved 14 years of
full-time studies. The Minister suggests that, without that evidence, the
officer reasonably concluded that the regulatory criteria had not been met.
[7]
In my
view, the respondent’s position overlooks the definition of “full-time
equivalent”. Even without the evidence of 14 years of full-time study, the
officer had to consider, on the evidence before him, whether Mrs. Shahid met
the definition of full-time equivalent. As I read that definition, in the
context here, an applicant would meet the criteria where he or she actually
takes either more or less than fourteen years to acquire a bachelor’s degree
but, nevertheless, shows that the degree would ordinarily take fourteen years
of full-time study to obtain.
[8]
The
officer explains in his affidavit that candidates for bachelor’s degrees in Pakistan can register
as external students and then pursue their studies elsewhere or through private
tutors. They can sit their exams at the university (e.g., The
University of Karachi) and, if successful, obtain their bachelor’s degree. The
university does not require students to have attended classes at the university
either on a full-time or part-time basis. In Mrs. Shahid’s case, the officer found
that she had not provided proof that she had attended classes anywhere given
that she was an external candidate. Accordingly, she did not meet the
definition of a “full-time” student. He went on to state that the lack of proof
of attendance in classes meant that she did not meet the definition of
“full-time equivalent” either.
[9]
It
is clear why Mrs. Shahid did not meet the definition of “full-time” – she did
not provide evidence of attendance in class for 15 hours a week. However, it is
not clear why she did not meet the definition of full-time equivalent. Even if
she studied elsewhere, or on her own, whether part-time or on an accelerated
basis, it seems to me she could meet the definition of “full-time equivalent”
if she proved that the degree she obtained would ordinarily take 14 years of
full-time study to obtain. Here, the evidence showed that she took exams over
the course of two years and obtained a degree that ordinarily takes two years of
full-time study to achieve. And she provided proof of twelve years of full-time
study preceding her university credential. In the circumstances, I believe
another officer should consider whether this evidence satisfies the applicable
regulatory requirements.
III. Conclusion
and Disposition
[10]
In
my view, the officer unreasonably disallowed any credit for Mrs. Shahid’s
education. I will order Mr. Shahid’s application to be reviewed by another
officer. Mr. Shahid asked for costs, but I find no special circumstances that
would justify them. The parties requested an opportunity to make submissions on
a question of general importance. I will consider any submissions made within
10 days of this judgment.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1. The
application for judicial review is allowed. The matter is referred back to another
officer for reconsideration.
2. There is no
order as to costs.
3. The parties may
make submissions on a question of general importance for certification within
10 days of this judgment.
“James
W. O’Reilly”
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