Date: 20101020
Docket: IMM-6394-09
Citation: 2010 FC 1025
Ottawa, Ontario, October 20, 2010
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
JIGARKUMAR
PATEL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Jigarkumar Patel, seeks an order quashing a decision of a visa
officer, rendered on January 5, 2010, by which his application for permanent
residence under the skilled worker class was refused.
I. Background
[2]
Mr.
Patel is a citizen of India. He is 31 years old and married. He and
his wife hold Bachelor of Science degrees from Sardar Patel University in India.
[3]
Mr.
Patel came to Canada in 2004
under a study permit. Beginning in February 2005 he attended as a full-time
student at the Canadian Career College where he was
awarded a Diploma in International Management in June 2006. From May 2007 to
December 2007 Mr. Patel attended the Xincon Technology College of Canada
(Xincon College) in
Scarborough as a full-time student studying Computer Systems Technology. The
record establishes that he obtained several course credits from Xincon College over two
semesters of study but he did not complete the program of 118 weeks.
[4]
Mr.
Patel submitted his application for permanent residency in January 2008. In
that application he claimed an entitlement to 74 selection points. This
included nine points for adaptability made up of five points for his two years
of Canadian study and four points for his wife’s post-secondary education in India.
[5]
In
August 2008, Mr. Patel’s request to extend his study permit was refused and, as
required, he and his wife returned to India.
[6]
On
October 16, 2009 Mr. Patel’s application for a permanent resident visa was
refused based on the visa officer’s award of only 63 selection points. This
fell four points below the minimum required for eligibility for a visa. The
shortfall was based on the visa officer’s refusal to award any selection points
for Mr. Patel’s Canadian post-secondary studies. The decision provided the
following rationale for that part of the visa officer’s assessment:
No adaptability points for your prior
study in Canada have been assessed as you have not studied at a post-secondary
institution in Canada in a program of full-time study of at least two years
duration; you completed a one year program at Canada Career College and have
presented evidence you attended one semester at Xincon College.
[7]
The
visa officer’s CAIPS notes provided additional detail in support of the
decision:
To have 5 points assessed, PA must
provide evidence he has studied at a (i.e. one) post-secondary Cdn institution
in a program of full-time study of at least two yrs’ duration; PA has completed
a one yr program at one school and appears to have attended one semester at a
different school:: furthermore, I note PA took two disparate, distinct programs
and did not/not transfer from one institution to another into a similar program
and with transfer credits:: PA has presented transcripts he had notarized in
Jan/09 and I understand this to mean these transcripts show the extent of his
studies at Xincon College as it would seem unreasonable to have notarized, and
then submit, transcripts that do not show the complete scholastic history at a
particular school:
I am not/not satisfied, based on the
evidence before me, to assess 5 points (for the purposes of this app’l only).
II. Issues
[8]
What
is the appropriate standard of review?
[9]
Did
the visa officer err in his interpretation of s 83 of the Immigration and
Refugee Protection Regulations (SOR/2002-227) (IRPA Regulations)?
III. Analysis
[10]
I
do not agree with the Minister’s assertion that the principal issue presented
by this application must be assessed on the standard of reasonableness. The
primary basis for the visa officer’s decision involved the interpretation of s 83
of the IRPA Regulations. This raises an issue of law which must be reviewed on
the standard of correctness: see Sapru v Canada, 2010 FC 240, 2010
CarswellNat 455 (WL) at paras 15 and 16; Charalampis v Canada, 2009 FC
1002, 353 FTR 24 at para 34; and Angeles v Canada, 2009 FC
744, 2009 CarswellNat 2506 (WL) at para 16. I accept that the issue of whether
Mr. Patel completed two years of study as required by s 83 involves an issue of
mixed fact and law attracting a standard of review of reasonableness.
[11]
The
visa officer refused to award any points for Mr. Patel’s adaptability based, in
part, upon an interpretation of s 83 of the IRPA Regulations that required Mr.
Patel’s full-time attendance for two years in a single academic program at a
single accredited institution. Because Mr. Patel had attended two distinct
academic programs at two accredited institutions, the visa officer found that
the requirements of s 83 had not been met. The visa officer also appears to
have found that Mr. Patel had attended school for only 18 months which was also
insufficient to satisfy the s 83 study requirement.
[12]
The
relevant portions of s 83 provide:
|
Adaptability (10 points)
|
Capacité
d’adaptation (10 points)
|
|
83. (1) A maximum of 10
points for adaptability shall be awarded to a skilled worker on the basis of
any combination of the following elements:
|
83. (1) Un maximum de 10 points d’appréciation sont
attribués au travailleur qualifié au titre de la capacité d’adaptation pour
toute combinaison des éléments ci-après, selon le nombre indiqué :
|
|
[…]
|
[…]
|
|
(b) for any previous period of study in Canada by the skilled worker or the skilled worker's spouse or common-law
partner, 5 points;
|
b) pour des études antérieures faites par le travailleur qualifié ou son
époux ou conjoint de fait au Canada, 5 points;
|
|
[…]
|
[…]
|
|
Previous
study in Canada
|
Études antérieures
au Canada
|
|
(3) For the purposes of paragraph (1)(b), a skilled worker shall
be awarded 5 points if the skilled worker or their accompanying spouse or
accompanying common-law partner, by the age of 17 or older, completed a
program of full-time study of at least two years' duration at a
post-secondary institution in Canada under a study permit, whether or not they
obtained an educational credential for completing that program.
|
(3) Pour l’application de l’alinéa (1)b), le travailleur qualifié
obtient 5 points si, à la date de son dix-septième anniversaire ou par la
suite, lui ou, dans le cas où il l’accompagne, son époux ou conjoint de fait
a complété avec succès un programme au titre d’un permis d’études — que ce
programme ait été couronné ou non par un diplôme — qui a nécessité au moins
deux ans d’études à temps plein dans un établissement d’enseignement postsecondaire
au Canada.
|
[13]
The
parties disagree about the meaning of the words “completed a program of
full-time study of at least two years duration… whether or not they have
obtained an educational credential for completing that program”.
[14]
It
is argued on behalf of Mr. Patel that this provision means only that the person
be enrolled as a full-time student (15 hours per week) in one or more
accredited academic programs for a period of not less than two academic years
(4 semesters).
[15]
In
keeping with the visa officer’s decision, the Minister contends that s 83 is more
restrictive and that it does not permit a person to pursue a succession of
different academic programs taken at more than one accredited institution.
[16]
It
is of considerable surprise to me that this specific issue has not previously
arisen and that I have no evidence to indicate whether the visa officer’s interpretation of s 83 is in keeping
with the Respondent’s
past practice. The only authority cited to me is that of Justice Elizabeth
Heneghan in Nie
v
Canada (Minister of Citizenship
and Immigration), 2009 FC 220, 80 Imm. LR (3d) 127 which involved a
student who had attended three different schools under 3 study permits. The
visa officer’s decision stated only that Mr. Nie had not established that he
had studied in Canada for at least two years. Apparently the
interpretation argument now advanced to me by the Minister was not put to
Justice Heneghan because it did not form any part of her analysis. She
overturned the visa officer’s decision but only because it was inconsistent
with the clear evidence of a period of a study exceeding two years.
[17]
Given
the multitude of post-secondary programs in Canada that are less than two years
in duration, I would have
thought that the restrictive approach taken before me by the Minister would
have led to a much clearer statement than is found in the Federal Skilled
Worker Manual (OP6) which states:
b) Previous
study in Canada:
- Award
five points if the applicant or accompanying spouse or common-law partner completed
a program of full-time study of at least two years’ duration at a
post-secondary institution in Canada, if this occurred after the age of
seventeen and with valid study permits.
(The
person is not required to have obtained an educational credential for these two
years of study in Canada to earn the points, but simply to
have completed at least two years of study.)
[Emphasis
added]
[18]
Regardless
of the above concerns, I am satisfied that the visa officer’s interpretation of s 83 was
incorrect in law.
[19]
The
Minister argues that s 83 refers throughout to the singular (a
program; a post-secondary institution; that program) and that its
ordinary meaning must therefore be confined to a single two-year academic
program at one institution.
[20]
Counsel for Mr. Patel
points to ss 33(2)
of the Interpretation Act, R.S., 1985, c. I-21 which
dictates that “words in the singular include the plural and words in the plural
include the singular”. Accordingly, the references in s 83 to the
singular must be taken to include “programs”, “institutions”, “study permits”
and “those programs”: see Canada v Ward, [1993] 2 SCR 689, 103 DLR (4th)
1 at para
90. It seems to me that this argument has considerable merit and is also in
keeping with a purposive approach to the interpretation of s 83.
[21]
Consistent
with the statutory language used, both parties agree that the acquisition of
an academic credential is not a requirement for the award of adaptability
points. This is in harmony with s 78 of the Regulations where points
are awarded for academic credentials. Presumably one’s adaptability is not
dependent upon academic achievement but rather on the basis that one be
enrolled in full-time studies at an accredited institution, or institutions for
at least two years. I can identify no policy rationale for the narrow approach
advanced by the Minister. Taking a succession of academic programs at one or
more accredited institutions would not defeat or detract from the statutory
purpose of recognizing a person’s adaptability, provided that the other
statutory pre-requisites are met. To entirely discount the value of Mr. Patel’s
pursuit of business and computer skills on such a basis seems perverse and not
in keeping with the statutory object of recognizing a person’s adaptability in Canada.
[22]
The
second basis for the visa officer’s decision appears to be that Mr. Patel did
not complete two years of academic study. The record indicates that Mr. Patel
had successfully completed three academic semesters of full-time study at the
Canadian Career College and
either one or two semesters at Xincon College. I agree
with counsel for Mr. Patel that reference to two years in s 83 means
academic and not calendar years (see ss 78(1)) and
that it contemplates breaks in the continuity of study. If a student removes
himself unduly from a study program, that problem can be addressed by the
revocation of the study permit. In the result, Mr. Patel’s apparent successful
completion of either four or five academic semesters would be sufficient to
fulfill the two year study requirement under s 83.
[23]
The
visa officer’s decision is set aside. The matter will be remitted to a
different decision-maker for re-determination on the merits in accordance with
these reasons.
[24]
The
parties agreed that the issue raised on this application may be of sufficient
importance to support a certified question. I will, therefore, allow counsel
for the Respondent 14 days to propose an appropriate question and the Applicant
will have 7 days thereafter to respond.
JUDGMENT
THIS COURT
ADJUDGES that this application for
judicial review is allowed with the matter to be remitted to a different
decision-maker for re-determination on the merits and in accordance with these
reasons.
THIS COURT
FURTHER ADJUDGES that the issue of a certified question is reserved
pending further submissions from the parties, if any.
“ R. L. Barnes ”
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