Date: 20110325
Docket: IMM-2954-10
Citation: 2011 FC 370
Ottawa, Ontario, March 25, 2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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KHATUN RABEYA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. THE FACTS
[1]
The
Applicant is a citizen of Bangladesh whose application for
permanent residence under the Federal Skilled Worker Class was refused. By way
of a written notice, an Immigration Officer of the Canadian High Commission in Singapore refused the
application on the basis that the Applicant did not meet the standards under
the Federal Skilled Worker Class, as per the assessment of 64 points on a 100-point
scale. The Applicant was granted leave for judicial review of this
determination on December 3, 2010.
[2]
The
Applicant’s documentation and credentials were assessed in light of the
Officer’s interpretation of the applicable standards. The central issue in the
application is that the Officer awarded 22 points out of 25 for the Applicant’s
education credentials. The Applicant contends that 25 points should have been
awarded. These three (3) points would have enabled her to be granted permanent
residence under the Federal Skilled Worker Class. In support of the assessment
of the Applicant’s educational credentials, the Officer noted the following:
Education – Per application dated 3 Aug
09, PA stated to hv 16 years of education with a Masters’ degree. She did not
state to have completed another master deg. PA provided another schedule 1 in
Jan 2010 and she stated to hv done a master deg from Feb 08 to Aug 09 with Darul Ihsan University. I am not considering this as
she already obtained a master deg in 95 and the two master def are equivalent
and not a real progression from one to another.
[3]
As
indicated, the Applicant possesses two (2) Masters’ degrees. In 1995, she
obtained a Masters’ degree in Arts (MA), and in August of 2009, she completed a
Masters’ in Business Administration (MBA in Marketing). The Officer’s decision
to consider only one Masters’ degree was based on an interpretation of the
relevant provisions of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations). These read as follows:
Definitions
73.
The following definitions apply in this Division, other than section 87.1.
“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.
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Définitions
73.
Les définitions qui suivent s’appliquent à la présente section, à l’exception
de l’article 87.1.
(…)
«
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 de tels établissements dans le pays de
délivrance de ce diplôme ou certificat.
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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:
(…)
(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 masters’ 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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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 :
(…)
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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[4]
More
precisely, the Officer decided that, upon application of subparagraph
72(2)(e)(ii), the Applicant had a Masters’ degree and 16 years of full-time
studies, falling short of the 17 years required for her to be granted 25
points. As seen above, this was confirmed by the Officer’s reading of subsection
73(3) of the Regulations, whereby the Applicant could not be twice credited for
the same “educational credential”. At no point did the Officer take issue with
the validity of any of the Applicant’s credentials or noted that these were not
from “recognized institutions”.
[5]
The
Applicant takes issue with this reading of the Regulations and argues that she
should have been awarded 25 points for her educational credentials, as her MBA
should have been considered as the highest educational credential.
[6]
The
Respondent contends that the Officer’s reading of the Regulations is within the
law. As such, there is no misinterpretation or error in this case. The
Respondent submits that this interpretation is also consistent with the case
law.
II. STANDARD
OF REVIEW
[7]
The
Officer clearly discarded the Applicant’s second Masters’ degree. Hence, the
question before the Court is not one of determining whether the Applicant’s
degrees are in progression or if the Officer should have considered the
national educational standards in Bangladesh, as suggested by the
Applicant.
[8]
As
the Officer chose to not consider the second Masters’ degree, the question
before the Court is a question that raises legal and factual issues: does the
assessment of educational credentials under sections 73 and 78 of the
Regulations allow the Officer to consider two (2) credentials of the same
level? More pragmatically, did the Officer err in attributing 22 points to the
Applicant for her two (2) Masters’ degrees?
[9]
In
light of the factual underpinning of this question, it is essentially a mixed
question of fact and law that is to be reviewed on the reasonableness standard
(Dunsmuir v New Brunswick, 2008 SCC 9; McLachlan
v Canada (Citizenship
and Immigration), 2009 FC 975). As such, the Court will consider whether the
decision falls within the range of acceptable outcomes defensible in fact and
law (Dunsmuir, above, at para 47).
III. ANALYSIS
[10]
The
Court notes that questions at the very heart of this matter have been certified
in proceedings before this Court in Khan v Canada (Citizenship and
Immigration), 2010 FC 983; Kabir v Canada (Citizenship
and Immigration), 2010 FC 995; Thomasz v Canada (Citizenship and
Immigration), 2010 FC 1159; and Hasan v Canada (Citizenship
and Immigration), 2010 FC 1206. These questions read as follows:
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?
When a skilled worker visa applicant has
achieved an educational credential referred to in a particular subparagraph in
Regulation 78(2) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 but not the total number of years of study required by that
subparagraph, does section 78(4) require the visa officers to award the number
of points based on the applicant’s highest educational credential or based on
the applicant’s years of study?
[11]
In
resolving this matter, the Court notes that the state of the law on this matter
as it stands is divided. Madam Justice Heneghan, relying on Bhuiya v Canada
(Citizenship and Immigration), 2008 FC 878, asserted in Kabir,
above, Khan, above, and Thomasz, above, that 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” (See, inter alia, Khan, at para 19). As such,
these decisions call for a strict interpretation of the Regulations, as no
person can be awarded “double-points” for the same educational credential.
[12]
In
contrast, Justice Campbell decided in Hasan v Canada (Citizenship and
Immigration), 2010 FC 1206, that Justice Mandamin’s reasons in McLachlan
v Canada (Citizenship and Immigration), 2009 FC 975, were determinative on
the issue. As such, Justice Campbell undertook an exercise in distinguishing,
as the facts underlying the Court’s decision in Bhuiya were such that
the reasoning in Bhuiya was ill-suited to the facts of the case.
Furthermore, it was decided that the notion of “line of progression” between
diplomas was not a proper factor for assessing academic credentials and as
such, the complete academic history was a better way to assess the application.
[13]
More
precisely, there is uncertainty in how two (2) Masters’ degrees should be
assessed under the Regulations. In Kabir, Madam Justice Heneghan decided
that “the language of subsection 78(3) is clear. No points can be awarded for
two Masters’ degrees”. In Hasan, Justice Campbell ruled that “if an
applicant such as Mr. Hasan has two Masters’ 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”.
[14]
I
have carefully read the reasons of all of my colleagues on these matters. In
the present reasons, I will tend to favour Justice Campbell’s reasons in Hasan,
but with some limits. Due to a different factual matrix triggering a different
interpretation of the applicable law, I will not rely on Justice Mandamin’s
reasons in McLachlan. The Court will also depart from the interpretation
of the Regulations given by Madam Justice Heneghan in Khan, above.
[15]
Firstly,
the Court adheres to the views expressed in Hasan, whereby it was noted
that the factual matrix in Bhuiya was such that it could not justifiably
apply to cases where applicants have two credentials at the same level. As
Madam Justice Mactavish indicated in Bhuiya, at para 19: “The fact that
Ms. Bhuiya may have spent one additional year in school after obtaining her Masters’
degree does not turn her 16 year Masters’ degree into a 17 year Masters’ degree”.
In Bhuiya, the Applicant had completed another diploma, not of Masters’
level, and wanted this recognized in the assessment of the duration of her
studies.
[16]
Surely,
the case in Bhuiya is logical: another diploma, of an unrelated or of a
“lesser” nature, does not transform into higher credentials. While these other
qualifications may even prove beneficial to Canada, the Officer
is required to assess the highest education credential (subparagraph
78(3)(b)(ii) of the Regulations). The case here is different: what makes the
first Masters’ obtained the “highest educational credential”?
[17]
As
seen above, “educational credential” is loosely defined as “any diploma, degree
or trade or apprenticeship credential issued on the completion of a program of
study or training (…)” (s.73 of the Regulations). With respect to my colleague,
it is inappropriate to state, in regards to section 78(3) of the Regulations,
that “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 Masters’ level, he will not receive double points.” (Kabir,
above, at para 12).
[18]
In
fact, the question here is not awarding double points, but rather, awarding
points for the single credential obtained that gives the higher assessment. The
plain reading of subparagraph 73(3)(b)(i) supports the contention that the single
educational credential that results in the highest number of points is to
be considered. At face value, this means that the Applicant’s second Masters’
degree should have been considered: it was indeed the single educational
credential resulting in the highest number of points.
[19]
Justice
Campbell’s analysis goes to legislative intent and to the fact that the number
of years of studies must be read disjunctively from the credential obtained.
Thus, what is implied in Hasan is that the complete academic history
must be considered in assessing the number of years of full-time studies.
[20]
The
Court will not go so far, as this reasoning may lead to illogical results. For
example, the case in Bhuiya would have seen the Applicant receive more
points for a diploma that is arguably of a lesser value than the highest
credential obtained. Again, the Court stresses the fact that the Regulations
call for the evaluation of the single educational credential that awards the
most points. For example, in Bhuiya, this would have been the
Masters’ degree, and the Applicant would not have received points for the
diploma undertaken after. This may be where the “logical progression” argument
put forward by the Officer originates. Justification may have been required in
cases similar to Bhuiya to exclude the lesser, more recent diplomas,
that, as Madam Justice Mactavish noted, do “not transform a 16 year Masters’
degree into a 17 year Masters’ degree”. This concern is assuaged when only the
single educational credential that awards the most points is considered, as
required by the Regulations.
[21]
Further,
the Court cannot take issue with Justice Mandamin’s findings in MacLachlan,
above, because, as already noted, the facts of that case are different. The
question then was whether points could be awarded for a credential, despite the
requisite number of years not being met. This question has been certified to
the Court of Appeal. In the case at bar, the requisite number of years is met
if one considers the more recent Masters’ degree. Again, the Court emphasizes
the following question: what are the legal grounds to exclude a second degree
of the same academic level?
[22]
As
a matter of fact and a matter of law, there are no grounds to exclude a second
Masters’ degree. While it is true that paragraph 78(3)(a) of the Regulations
states that “points shall not be awarded cumulatively on the basis of more than
one single educational credential”, the Court refers to the definition of
“educational credential”, where emphasis is placed on the actual credential
awarded, not its rank or grade. The problem here is one of interpretation of
the word “credential”.
[23]
It
is open for the Court to consider the French definition of “educational
credential”, whereby the translation is “diplôme”. In French, no
confusion arises from the use of diplôme, as it cannot be understood as
a “credential”, or “grade”. As both the English and French
version of a statute are authoritative (see, inter alia, Schreiber v
Canada (Attorney General), 2002 SCC 62; R v Sharpe, 2001 SCC 2), the
Court must seek to find the common meaning between the two (2) dispositions, in
conformity with the Supreme Court’s approach to bilingual interpretation drawn
out in Medovarski v Canada (Minister of Citizenship and Immigration), 2005
SCC 51 and R v Daoust, 2004 SCC 6. Once the common meaning is
established, the Court must assess whether this common meaning falls within the
scope of legislative intent. Here, the common meaning is the more restrictive
interpretation of “educational credential”, referring to the credential itself,
i.e. in French, the “diplôme”, not its rank, or “grade”. As will
be seen below, it is also the interpretation that gives full effect to the
IRPA’s objectives.
[24]
Furthermore,
sound statutory interpretation requires that when a Court is confronted with
two (2) meanings for a provision, it must prefer that which avoids absurd
results or strips dispositions of their full effect (R v McIntosh,
[1995] 1 S.C.R. 686; Flavell v Deputy MNR, Customs and Excise, [1997] 1 FC
640). Such is the case here. If the Court was to read “credential” as simply
the rank obtained, i.e. Masters’ (or “grade” in French), it would render
subparagraph 73(3)(b)(i) useless: an Applicant could never have more than one
“credential” of the same level as an applicant is a Masters’ graduate whether
he or she has one (1) or two (2) degrees at this level. Thus, “credential” must
be read as defined by the Regulations, i.e. as the actual diploma, title,
degree or the like, completed (“diplôme” in French).
[25]
As
for “double-counting” of points for the same credential, the plain reading of
subsection 78(3) instructs that the worries expressed in case law is not
founded when “educational credential” is considered as described in the present
reasons. When the more limited definition of “educational credential” is
considered, there can be no double-counting. Rather, paragraph 78(3)(a) of the
Regulations instructs against awarding incremental points for every “academic
step” met. For example, an applicant with two (2) Bachelor’s degrees and a
Masters’ would not be awarded 22 points under subparagraph 78(2)(e)(i) as well
as 25 points for the Masters’ under paragraph 78(2)(f), for a total of 47
points. This is what is anticipated by paragraph 78(3)(a) of the Regulations.
The French version of paragraph 78(3)(a) confirms this, and instructs that the
reader be more attuned to the “cumulative” aspect of paragraph 78(3)(a), rather
than the “same credential” aspect of this paragraph (“ils ne peuvent être additionnés
les uns aux autres du fait que le travailleur qualifié possède plus d’un
diplôme”, emphasis added). Paragraph 78(3)(a) also confirms that “educational
credential” refers to the actual diploma awarded, rather than its rank, as was
discussed above.
[26]
In
Hasan, above, Justice Campbell noted the following at para 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 Masters’
degrees, the factors named in s. 78(2)(f) must be read disjunctively. That is,
if an applicant such as Mr. Hasan has two Masters’ 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.
[27]
As
reasoned above, the Court does not believe that a disjunctive reading of the
factors in section 78(2)(f) is required. Again, the Applicant does indeed have
a Masters’ degree; and this education credential comes after at least 17 years
of full-time or full-time equivalent studies. Hence, the criteria of section
78(2)(f) are satisfied. The only “problem”, if it can even be qualified as
such, is that the 17 years of studies result from undertaking a second Masters’
degree. As the Officer must assess the educational credential awarding the
highest number of points, it is confirmed that the second Masters’ degree was
to be considered.
[28]
Not
considering the second Masters’ degree, or a second educational credential of
the same level, is absurd, as it fails to recognize that people can indeed
pursue their studies at a graduate level in another field after completing a
first graduate degree. In the case at bar, the Applicant completed an MBA,
after receiving an MA many years earlier. It is illogical to discount a second
Masters’. In fact, subparagraph 78(2)(e)(i) clearly anticipates a situation
where two credentials of the same rank are to be considered, in that case, two (2)
Bachelor’s degrees.
[29]
The
IRPA’s objectives confirm this reading. More particularly, the Act’s objectives
are, among others, “to permit Canada to pursue the maximum social, cultural and
economic benefits of immigration” and “to support the development of a strong
and prosperous Canadian economy, in which the benefits of immigration are
shared across all regions of Canada” (section 3 of the IRPA). Furthermore, the
criteria to be assessed under section 78 of the Regulations are to be
considered “for the purpose of determining whether a skilled worker, as a
member of the federal skilled worker class, will be able to become
economically established in Canada” (emphasis added).
Surely, considering a second Masters’ degree is consistent with the evaluation
of the capacity to become economically established in Canada, as well as
meeting the IRPA’s objectives.
[30]
This
is confirmed by the Regulatory Impact Analysis Statement - SOR/2002-227,
Canada Gazette, Part II, vol 136, no 9, where education is clearly stated as an
important consideration recognized by the Canadian labour market:
The stakeholder consultations
consistently highlighted the importance for Canada of immigration by skilled tradespeople
and encouraged the department not to overweigh advanced professional education.
Consequently, maximum points for a diploma, trade certificate or formal
apprenticeship will be raised from 13 to 22, depending on the number of years
of education or training. The maximum of 22 points allocated for a three-year
skilled trades credential is equivalent to that allocated for two bachelor’s
degrees in recognition of the value attached to this type of credential. In
addition, the maximum number of points available for education has increased
from 16 to 25, recognizing the considerable value that the modern Canadian
labour market assigns to education. (emphasis added)
[31]
Proper
interpretation of the Regulations in terms of assessment of education
credentials requires that full effect is given to the objectives of the IRPA as
well as the important consideration of whether a potential Federal Skilled
Worker can become economically established in Canada, as embodied
by the factors of section 78 of the Regulations. Thus, the Court sees no
opposition in paragraph 78(3)(a) and subparagraph 78(3)(b)(ii) of the
Regulations when “educational credential” is read as defined by section 73 of
the Regulations. There is no need to introduce a potentially unpredictable
criterion of “the complete academic history”, as this may lead to results that
run counter to the Regulations. Rather, the “latest” and “highest” educational
credential is the one that is to be considered. In this case, it was the second
Masters’ degree, the MBA, which came after 17 years of studies.
[32]
The
evaluation of education credentials on an objective, points-based basis aims to
ensure consistency in the evaluation of credentials (Bhuiya, above, at
para 17; see also the Regulatory Impact Analysis Statement – SOR/2002-225,
above). Hence, the Regulations aim to limit the Officer’s discretion in
considering academic credentials. This would be considerably eroded if the
Court were to accept Justice Campbell’s argument that “the complete academic
history” must be considered. Between absolute discretion in assessing
educational credentials, which the points-based system avoids, and a
mechanistic analysis, there needs to be balance. This balance is found within
the points-based system, where the highest credential is to be considered.
[33]
As
for certified questions, the Court has already noted that similar issues have
resulted in questions being certified for consideration by the Federal Court of
Appeal. It is important in terms of equity and fairness that a question be certified
in this proceeding as well, as the underlying facts are very similar and this
Court’s judgment offers a different perspective on the interpretation of the
Regulations.
[34]
The
Applicant submitted three (3) questions for certification, which read as follows:
a.
For the
purposes of section 78(3)(a0 of the Immigration and Refugee Protection
Regulations, what is the significance of “single educational credential”
when considering more than one masters’ degree under section 78(2)(f),
particularly where one of those degrees is of a higher and/or professional
nature?
b.
For the
purposes of section 78(3)(b)(i) of the Immigration and Refugee Protection
Regulations, is a visa officer to consider a second Masters’ degree under
section 78(2)(f) as the “single educational credential that results in the
highest number of points”?
c.
In
assessing points for education under section 78(2)(f) of the Immigration and
Refugee Protection Regulations, is a visa officer to consider points on the
basis of a second masters’ degree?
[35]
The
Respondent’s position is that these three (3) questions do not satisfy the
threshold for certification. Rather, the Respondent submits that the following
question should be certified:
Is the onus on an Applicant to establish
the years of studies related to the educational credential that results in the
highest number of points under R78(2)(f) and R78(3)(b)(i) of the Immigration
and Refugee Protection Regulations, or is a visa officer expected to be aware
of the years of studies associated with that educational credential?
[36]
This
question is not suitable for certification, as it was not an issue arising from
the facts of the case. In fact, what was in evidence was that in total, after
her MBA, the Applicant had completed 17 years of studies. Thus, the question
proposed by the Respondent does not arise in the case at bar.
[37]
Considering
the present reasons and the analysis herein, the Court cannot proceed with
certifying the same questions as those certified by Madam Justice Heneghan and
Justice Campbell in Kabir, above, Khan, above and Hasan,
above. Rather, the analysis herein justifies that a different question be
certified. As suggested by the Applicant, the Court will certify the second
proposed question, as it is both determinative of the appeal and of general
importance, as instructed by the Federal Court of Appeal in Canada (Minister
of Citizenship and Immigration) v Zazai, 2004 FCA 89. The Court will
certify the following question:
For the purposes of section 78(3)(b)(i)
of the Immigration and Refugee Protection Regulations, is a visa officer
to consider a second Masters’ degree under section 78(2)(f) as the “single
educational credential that results in the highest number of points”?
[38]
Thus,
the application is allowed and the matter is to be sent back for
redetermination.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. The application is allowed and the matter is to be sent
back for redetermination before the appropriate authority; and
2. The following question is
certified:
“For the purposes of section 78(3)(b)(i)
of the Immigration and Refugee Protection Regulations, is a visa officer
to consider a second Masters’ degree under section 78(2)(f) as the “single
educational credential that results in the highest number of points”?”
“Simon Noël”