Date: 20101006
Docket: IMM-1291-10
Citation: 2010
FC 995
Ottawa, Ontario,
October 6, 2010
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MD.
KHAIRUL KABIR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. MD.
Khairul Kabir (the “Applicant”) seeks judicial review of the decision of an
Immigration Officer (the “Officer”) made at the Canadian High Commission, Singapore, on November 25, 2009. In
that decision the Officer refused the Applicant’s application for permanent
residence in Canada as a member of the Skilled
Worker class.
[2]
The
Applicant is a citizen of Bangladesh. He and his wife seek entry
into Canada as permanent residents. The
Applicant had attained the educational qualifications of a Bachelor’s degree in
Political Science, a Master’s degree in Political Science and a Master’s of
Business Administration. He also holds a Diploma in Fashion Merchandising. In
total, the Applicant has completed eighteen years of full-time study.
[3]
His wife
holds a Bachelor’s degree of Social Science, a Diploma of Computer Studies and
a Master’s degree of Social Science in Political Science. She has completed
fifteen years of full-time study.
[4]
The
Officer determined that the Applicant earned 22 points for education, on the
basis of the educational credentials he had achieved. The Officer found that
the Applicant’s highest educational credential was the Master’s in Social
Science which requires sixteen years of full-time study. No points were awarded
for the second degree at the Master’s level nor for the Diploma in Fashion
Merchandising because the Diploma was not in the line of progression toward the
highest educational credential.
[5]
The
Officer assessed the education of the Applicant’s wife as requiring sixteen
years for completion. The Officer found that the highest education held by Mrs.
Kabir was the Master’s in Social Science. No points were awarded in respect of
the Diploma because it was not in the line of progression toward the highest
educational credential. The Officer awarded 4 points, under the heading of
“Adaptability”, to the Applicant’s point count in respect of his wife’s
education.
[6]
The
Applicant argued, in oral submissions, that the Officer’s decision is wrong in
law. He submits that in denying credit for his second Master’s degree and the
Diploma, the Officer erred in interpreting subsections 78(3) and 78(4)
of the Immigration and Refugee Protection Regulations, SOR/2002-227.
In his written submissions the Applicant argued alternatively that the decision
raises a question of mixed fact and law and is reviewable on the standard of
reasonableness.
[7]
The
Minister of Citizenship and Immigration (the “Respondent”) submits that the
question in issue is one of mixed fact and law and accordingly, subject to
review on the standard of reasonableness.
[8]
In my
opinion, the Respondent’s argument is the preferred position. The issue in this
proceeding is whether the Officer committed a reviewable error in assessing the
Applicant’s application for permanent residence specifically in relation to the
assessment of his educational qualifications and those of his wife.
[9]
This case parallels
the facts and issues that were discussed in MD. Ali Khan v. Canada (Minister of Citizenship and Immigration), 2010 FC 983, and will be
decided accordingly.
[10]
Section 78
of the Regulations deals with the assessment of educational credentials.
“Educational credential” is defined in section 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.
|
[11]
Paragraph 78(3) is
relevant and provides as follows:
|
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.
|
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.
|
[12]
The plain language of
this provision says that points will not be awarded for two or more educational
credentials. This means that although the Applicant holds two degrees at the
Master’s level he will not receive double points.
[13]
The Officer
researched the period of full-time studies required to obtain a Master’s degree
in Bangladesh and determined that 16 years of
full-time studies are required. She also decided that the diploma obtained by
the Applicant in 1999 did not qualify as augmenting the number of years
required to attain his highest academic credential because it was not part of
the progression towards obtaining a Master’s degree in 1989. Similarly, the
Officer decided that Mrs. Kabir’s Diploma was not part of the progression
towards obtaining her Master’s degree.
[14]
The Officer awarded
the Applicant 22 points for his education, pursuant to paragraph 78(2)(e) of
the Regulations which provides as follows:
|
(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
|
e)
22 points, si, selon le cas:
(i)
il a obtenu un diplôme postsecondaire — autre qu’un diplôme universitaire —
nécessitant trois années d’études à temps plein 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;
|
[15]
The Applicant argues
that the officer erred and should have awarded him 25 points on the basis of
paragraph 78(2)(f) which provides as follows:
|
(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.
|
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.
|
[16]
The Applicant also
submits that the Officer erred in assessing Mrs. Kabir’s academic credentials
in the same way, so that the Applicant should have received 5 points for adaptability
on the basis of Mrs. Kabir’s education.
[17]
I do not accept the
Applicant’s submissions. The language of subsection 78(3) is clear. No points
can be awarded for two Master’s degrees. The Applicant completed 18 years of
full-time studies but only 16 years were required in Bangladesh in order to obtain a Master’s degree. Mrs. Kabir completed
her Master’s degree in 15 years. Both fall 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.
[18]
The Applicant relies
on subsection 78(4) of the Regulations and the decision of Justice Mandamin in McLachlan
v. Canada (Citizenship and Immigration), 2009 FC 975. In that case the Court
held that subsection 78(4) is engaged where an individual has attained an
academic credential but not the specified years of study. If adequate special
circumstances exist the applicant should be awarded the number of points
corresponding to the academic credential attained, notwithstanding that the
applicant has not completed the specified years of study. The application was
allowed due to the visa officer’s failure to consider the special circumstances
of that case.
[19]
In Perez Arias v. Canada (Citizenship and Immigration), 2009 FC 1207, I discussed the principle
of judicial comity as follows:
[20]
I am mindful that the principle of judicial comity must be taken into account
when a judge of the Court purports to depart from a prior decision of the
Court. In this regard, I refer to the decision in Almrei v. Canada (Citizenship and Immigration) 2007 FC 1025 (CanLII), (2007), 316
F.T.R. 49 at paras. 61 and 62 where Justice Lemieux said the following about
judicial comity:
(3)
The principle of judicial comity
61
The principle of judicial comity is well-recognized by the judiciary in Canada. Applied to decisions rendered by judges of the Federal
Court, the principle is to the effect that a substantially similar decision
rendered by a judge of this Court should be followed in the interest of
advancing certainty in the law….
62
There are a number of exceptions to the principle of judicial comity as
expressed above they are:
1.
The existence of a different factual matrix or evidentiary basis between the
two cases;
2.
Where the issue to be decided is different;
3.
Where the previous condition failed to consider legislation or binding
authorities that would have produced a different result, i.e., was manifestly
wrong; and
4.
The decision it followed would create an injustice [citations omitted].
[20]
In
my opinion, the first and third exceptions from Almrei apply here. The Applicant has not put forward any
special circumstances that the Officer failed to consider.
[21]
The third exception
from Almrei is particularly relevant.
[22]
This Court in Bhuiya
decided that where an applicant had achieved an academic credential in less
years than specified, subsection 78(4) allowed a visa officer to award points
corresponding to the number of years of education, not the full points of the
level of the academic credential attained. Subsection 78(4) cannot be used to
award an applicant full points for an academic credential in special
circumstances notwithstanding that he or she has not completed the requisite
years of study.
[23]
In the result, this
application for judicial review is dismissed.
[24]
Counsel for the
parties have exchanged correspondence concerning a question for certification.
The test for certification is whether the case raises a question of general
importance which would be dispositive of an appeal; see Canada (Minister of Citizenship and
Immigration) v. Zazai (2004),
247 F.T.R. 320 (F.C.A.).
[25]
Counsel for the
Respondent has proposed the following question:
In
assessing points for education under section 78 of the Immigration and
Refugee Protection Regulations, does the visa officer award points for
years of full-time or full-time equivalent studies that did not contribute to
obtaining the educational credential being assessed?
[26]
In light of the fact
that there are differing judicial views about the assessment of educational
qualifications, I am satisfied that the question cited above should be
certified in this proceeding, even though the same question was certified in MD. Ali Khan v. Canada (Minister of Citizenship and
Immigration),
2010 FC 983.
ORDER
THIS COURT ORDERS that the application for judicial
review is dismissed. The following question is certified:
In
assessing points for education under section 78 of the Immigration and
Refugee Protection Regulations, does the visa officer award points for
years of full-time or full-time equivalent studies that did not contribute to
obtaining the educational credential being assessed?
“E.
Heneghan”
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