Date: 20101001
Docket: IMM-1196-10
Citation: 2010
FC 983
St. John’s, Newfoundland and Labrador, October
1, 2010
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MD.
ALI KHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. MD.
Ali Khan (the “Applicant”) seeks judicial review of the decision dated November
26, 2009 whereby an Immigration Officer (the “Officer”) denied the Applicant’s
application for permanent residence as a member of the “skilled worker class”,
pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the “Act”).
[2]
The
Applicant is a citizen of Bangladesh. He sought entry into Canada as a skilled worker,
specifically as an Accountant, National Occupation Classification (“NOC”) 1111
and, or as a Financial Advisor, NOC 1111. He submitted an application to the
Canadian High Commission in Singapore, providing details about his
educational qualifications among other things.
[3]
His application
was assessed against the requirements of the Act and the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the “Regulations”). He
obtained 64 points. The Regulations requires a minimum point assessment of 67.
The Applicant was awarded 22 points for his education; the maximum available
award of points for this factor is 25 points.
[4]
The award
of 22 points for his education is the subject of this application for judicial
review. The Applicant holds a Bachelor of Commerce degree that was awarded in
1985; a Master’s degree in accounting that was awarded in 1987; a diploma in
Computer Application programming that was awarded in 1998; and a Master’s in
Business Administration that was awarded in 2007. He has pursued 19 years of
full-time studies.
[5]
The
Officer assessed the Applicant’s education in the following terms:
EDUCATION: 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 Master’s 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. The diploma in computer
program is not in the line of progression towards obtaining your highest
credential and is not considered for additional years of education.
[6]
An
application for permanent residence as a member of the Skilled Worker class is
to be assessed upon the criterion of the ability of an applicant to become
economically established in Canada. This test is set out in
subsection 12(2) of the Act and echoed in subsection 75(1) of the Regulations.
These provisions are set out below:
|
Economic
immigration
12.
(2) A foreign national may be selected as a member of the economic class on
the basis of their ability to become economically established in Canada.
|
Immigration
économique
12.
(2) La sélection des étrangers de la catégorie « immigration économique » se
fait en fonction de leur capacité à réussir leur établissement économique au
Canada.
|
|
Class
75.
(1) For the purposes of subsection 12(2) of the Act, the federal skilled
worker class is hereby 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.
|
Catégorie
75.
(1) Pour l’application du paragraphe 12(2) de la Loi, la catégorie des
travailleurs qualifiés (fédéral) est une catégorie réglementaire de personnes
qui peuvent devenir résidents permanents du fait de leur capacité à réussir
leur établissement économique au Canada, qui sont des travailleurs qualifiés
et qui cherchent à s’établir dans une province autre que le Québec.
|
[7]
The
Applicant argues that the Officer’s decision was unreasonable, having regard to
his educational achievements.
[8]
The
Minister of Citizenship and Immigration (the “Respondent”) submits that the
negative decision is reasonable having regard to the statutory and regulatory
schemes.
[9]
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.
|
[10]
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.
|
[11]
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.
[12]
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 1998 did not qualify as increasing 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 1987. 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;
|
[13]
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.
|
[14]
I cannot agree with 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 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.
[15]
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.
[16]
In Perez Arias v. Canada (Citizenship and Immigration), 2009 FC 1207, I referred to 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].
[17]
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.
[18]
The third exception
from Almrei is particularly relevant.
[19]
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. This interpretation does not allow
for subsection 78(4) 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.
[20]
In the result, this
application for judicial review is dismissed.
[21]
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.).
[22]
Counsel for the
Respondent have 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?
[23]
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.
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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