Date: 20110706
Docket: IMM-4923-10
Citation: 2011 FC 824
Ottawa, Ontario, July 6,
2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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ZHALEH RABIEE
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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
[1]
This
is an application for judicial review under section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 26 (IRPA) of the decision rendered
by a Visa Officer (Officer), dated July 11, 2010 denying the applicant’s
application for permanent resident as a skilled worker.
[2]
For
the reasons set out below, this application shall be denied.
Facts
[3]
The
applicant applied for permanent residence in the skilled worker class as a specialist
physician (NOC 3111) in March 2009.
[4]
The
applicant completed medical school in Iran, followed by a two-year
internship. She then took on a four year residency program at the completion
of which she was recognized as certified specialist. The applicant presumed
that the completion of the specialty is akin to a doctorate, and that she would
therefore be awarded 25 point for education as per paragraph 78(2)(f) of
the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations).
[5]
When
the applicant’s application was assessed in January 2010, she received 64 units
of assessment. As 67 units are required to pass selection, her application was
refused.
[6]
The
applicant challenged the refusal decision by way of an application to the
Federal Court. In this application, the applicant argued that the Officer had
made three reviewable errors: First, that the Officer assessed the applicant
under the “general practitioner” (NOC 3112) category, as opposed to the
“specialist” category (NOC 3111). Second, the applicant argued that the Officer
erred in the assessment of the applicant’s language ability, and that she
should have received an additional two points. Third, the applicant argued
that the Officer awarded the applicant 22 points for her education, assuming
that all of her credentials were at the university bachelor’s level. The
applicant maintained that she should have received 25 points because of the
specialty she completed in dermatology.
[7]
After
reviewing the application record, counsel for the respondent, Mr. Joseph, wrote
to counsel for the applicant to make the following offer to settle:
i.
The
applicant discontinues the application for judicial review;
ii.
The
matter will be re-assessed by another Officer;
iii.
No
costs to either party.
[8]
The
applicant accepted this offer and filed a notice of discontinuance of
her application for judicial review. There were no other discussions or terms
of settlement.
[9]
The
applicant’s application was reassessed by a different Officer who awarded
66 points, which again fell short of the 67 points required. The
additional two points were awarded in the education category under
paragraph 78(2)(e)(ii).
Impugned decision
[10]
The
Officer assessed the applicant’s application under the “Specialist Physician”
category (National Occupation Category 3111), and made the following
determinations:
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Points
Assessed
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Maximum
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Age
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8
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10
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Education
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22
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25
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Experience
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21
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21
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Arranged
Employment
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0
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10
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Official
Language Proficiency
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6
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24
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Adaptability
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9
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10
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Total
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66
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100
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Education
[11]
As
shown above, the Officer granted the applicant 22 points under the education
category. The Officer noted that the applicant’s allegation is that she
has a doctorate in medicine, but the Officer determined that within the
Canadian context and the legislative framework of IRPA, the applicant could
not be considered to have obtained a doctorate.
[12]
The
Officer reasoned that the very essence of the term “doctorate degree” implies study
beyond that of a master’s degree. Given that the applicant had never completed
a master’s degree, she could not be considered to hold a Ph.D. The Officer
used the following definition of a doctorate from the University of Wisconsin to support
his argument: “A Ph. D or equivalent award designated the completion of
advanced graduate study beyond that required of a master’s degree”.
[13]
Accordingly,
the Officer awarded 22 points for “two or more university educational
credentials at the bachelor’s level and at least 15 years of study”.
[14]
The
Officer also quoted the Overseas Processing Manual 6 (manual) which states
that professional degrees, such as medical degrees are considered to be
bachelors degrees to which 20 points should be awarded.
Issues
[15]
The
issue to be determined in this application is the following:
a. Did the Officer
commit a reviewable error in assessing the number of education points to be awarded
to the applicant?
b. Has there
been an earlier admission by Mr. Joseph that the applicant should have received
25 points for her education?
c. If the above
questions are answered in the affirmative, should the applicant be awarded
costs?
Standard of review
[16]
The
questions to be determined in this case are of mixed fact and law. Accordingly,
the standard of reasonableness shall apply (Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, para 47).
a. Did the Officer
commit a reviewable error in assessing the number of education points to be
awarded to the applicant?
Applicant’s arguments
[17]
The
applicant states that the main issue in contention is whether or not the three
educational degrees she has received (1- the original medicine degree, 2- the
internship 3- the specialist designation) are all bachelor’s level university
credentials.
[18]
The
applicant submits that beyond her medical degree and her internship and license
to practice medicine, she has obtained four extra years of training and exams
in order to obtain her specialists degree. She states that this extra four
years must be said to account to something more similar to a master’s degree or
a PhD, either of which would grant the applicant 25 points for education.
[19]
She
makes reference to the descriptions of the two NOC categories that she believes
were confused by the Officer: The first is the General Practitioner category
(NOC 3112) which requires a bachelor’s degree, graduation from an approved
medical school, and two or three years of family medicine residency or
completion of the qualifying examinations of the Medical Council of Canada and
licensing by a Province or Territory. The applicant emphasizes that it also
states that “GPs and family physicians may become specialist physicians with
additional training”.
[20]
In
contrast, the applicant states that the Specialist Physician category (NOC 3111)
requires applicants to have a Bachelor of Science degree, graduation from an
approved medical school, and specific specialty training (4-5 years of
specialty residency training).
[21]
She
says that the manual referred to by the Officer unfortunately provides
only an explanation about “doctors” without specifying the distinction
between a GP and a Specialist Physician. She contends that both Officers
ignored the section of the manual which states that “If it is a second-level
degree, and if for example, it belongs to a Faculty of Graduate Studies, 25
points may be awarded”.
[22]
She
quotes the following portion of the manual: “If a bachelor’s credential
is a prerequisite to the credential, but the credential itself is still
considered a first-level degree, then 22 points would be appropriate”. The
applicant submits that her medical degree and her specialist’s degree cannot be
obtained at the same time as, for example, a degree in child psychology and a
degree in experimental psychology, because the degrees are not considered to be
at the same level. The applicant also submits that if it cannot be said that
the educational credentials are at the same level, then the Officer must follow
the Regulations and yield to 25 units under paragraph 78(2)(f).
[23]
The
applicant further argues that the Officer’s error is demonstrative of bad faith.
The Officer had all of the submissions made in the first application (which was
consented to by respondent’s counsel).
[24]
She
underscores that the material given to the Officer contained evidence
that the visa post had traditionally and continually recognized a
post-graduate degree of dermatology as being within the 25 point range. The
applicant contends that this information was not mentioned by the Officer.
[25]
She
finally alleges that the Officer relied upon definitions from Wikipedia and
from the University
of Wisconsin and argues that the manual requires educational
assessments to be made in accordance with the educational standards that apply
at the particular visa post.
Respondent’s arguments
[26]
The
respondent submits the applicant holds a medical degree, which is considered a
first-level degree. As such, he states that the degree, without
specialization would have earned the applicant 20 points under paragraph 78(2)(d)(ii)
(educational credential at the bachelor’s level and a total of at least 14
years of completed full-time or full-time equivalent studies).
[27]
Since
the applicant also completed a specialization in dermatology, this made her
eligible to receive an additional 2 points under paragraph 78(2)(e)(ii)
(two educational credentials at the bachelor’s level). The respondent
therefore argues that it was reasonable for the Officer to award the applicant
22 points.
[28]
The
respondent further submits that the Officer was not satisfied that the
applicant’s specialist degree was not a credential at the master’s or doctoral
level as there was no satisfactory evidence that the specialization qualified
as graduate studies as required by paragraph 78(2)(f) of the
Regulations.
Analysis
[29]
The
Officer’s decision falls within the range of reasonable outcomes Dunsmuir para
47. The Officer justified her decision for believing that the applicant’s
specialist degree was not a credential at the master’s or doctoral level.
Given that there was no clear evidence showing that the specialization
qualified as graduate studies, the decision was left to the Officer’s
discretion and the Court is not satisfied that this conclusion is
unreasonable. It is not up to the Court to re-weigh the evidence (Yu v Canada (Minister
of Citizenship and Immigration), 2010 FC 1263).
[30]
The
applicant cites Rabeya v Canada (Minister of
Citizenship and Immigration), 2011 FC 370 [2011] FCJ no 479, to support her
pretension that she should have been awarded 25 points for her education. The
facts in that cases are quite different than the one at bar. In Rabeya,
the applicant had completed a Masters' in Business Administration (MBA in
Marketing) after having obtained a Masters' degree in Arts (MA). The Court
came to the conclusion that it was unreasonable for the Officer to exclude the
second (MBA in marketing) degree because it was of the same academic level as
the first one (MA).
[31]
The
Officer in the present case explained clearly at paras 9-10 of her affidavit
how she awarded 22 points instead of 25 to the applicant for education. There
is no reviewable error.
b. Has there
been an earlier admission by Mr. Joseph that the applicant should have received
25 points for her education?
[32]
The
applicant maintains that Mr. Joseph (respondent's counsel) by
agreeing that the assessment made by the first Officer be returned for a
reassessment is an indication that Mr. Joseph was convinced that there was an
alleged error in the points awarded for education. The second Officer should
have recognized that admission and give the applicant 25 points.
[33]
There is no
evidence that the respondent acknowledged any error in the assessment of the
education points by the Officer. The offer to settle was made “without
prejudice” and as such, the applicant’s arguments cannot be accepted by the
Court.
[34]
Given
the Court's conclusions on the above two questions, the third
question need not be addressed.
[35]
The
applicant proposes the following question for certification:
1.
Whether
or not a Specialist Degree of Dermatology, the educational criteria of which
correspond to the NOC 3111 in which the application was submitted, is to be
addressed under Section 78(2)(e)(ii) or 78(2)(f) in the
absence of direct evidence that the Dermatology degree was pronounced by a
faculty of graduate studies.
[36]
The
respondent opposes such a question because it is too narrow and not of general
importance. The Court agrees and finds that the question deals only with the
facts of the present case and should not therefore be certified.
JUDGMENT
THIS COURT
ORDERS that:
1.
The
application for judicial review be dismissed.
2.
No
question is certified.
“Michel
Beaudry”
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