Date: 20080716
Docket: IMM-5454-07
Citation: 2008 FC 878
Vancouver, British Columbia, July
16, 2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
SHOKHINA
BHUIYA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Shokhina Bhuiya is a
Bangladeshi citizen whose application for permanent residence as a member of
the skilled worker class was rejected by a visa officer. Ms. Bhuiya now seeks
judicial review of that decision, asserting that the visa officer erred in
calculating the points to be awarded to Ms. Bhuiya for her education.
[2]
For the reasons that follow, I
am of the view that the visa officer did not err as alleged. As a
consequence, the application for judicial review will be dismissed.
Background
[3]
The facts in this matter are
not in dispute.
[4]
Ms. Bhuiya holds a Master’s
degree in Commerce. She completed 16 years of full-time education leading up to
this degree. After obtaining her Master’s degree, she returned to school, and
took a one-year course, which resulted in her receiving a diploma in personnel
management.
[5]
When Ms. Bhuiya’s application
for permanent residence was assessed, the visa officer awarded her 22 points
for the education factor, based upon the 16 years of education spent by Ms. Bhuiya
earning the highest educational credential that she had obtained, namely her
Master’s degree.
[6]
The visa officer determined
that Ms. Bhuiya’s post-graduate diploma in personnel management was “not in the
line of progression towards the highest credential”, namely the Master’s
degree. As a result, the visa officer did not include the year that Ms. Bhuiya
spent working towards this diploma in the calculation of her years of
education.
[7]
Ms. Bhuiya asserts that the
visa officer erred in this regard, submitting that there is nothing in the Immigration and Refugee Protection Regulations that would
justify ignoring a year of Ms. Bhuiya’s education in determining the points to
which she was entitled.
[8]
It is not disputed that had Ms.
Bhuiya been credited with an additional year of education, she would have
received 25 points for the education factor, and would have thereby met the 67 point
threshold required to obtain a permanent resident visa.
Standard of Review
[9]
Ms. Bhuiya submits that the
only issue in this case is the visa officer’s interpretation of the relevant
provisions of the Regulations, and that, as a result, the decision should be
reviewed on the correctness standard. In contrast, the Minister contends that
visa officers have expertise in the interpretation of the Regulations.
Moreover, the Minister submits that the case involves the application of the
law to the facts of the case, with the result that the decision should be
reviewed on the reasonableness standard.
[10]
I do not need to resolve this
issue, as I am of the view that the officer was indeed correct in her
interpretation of the Regulations.
Regulatory Framework
[11]
To be eligible for permanent
residence as a member of the skilled worker class, applicants have to obtain 67
points through the assessment process. Applicants can receive up to a maximum
of 25 points for their education. In determining how many points should be
awarded for the education factor, visa officers are governed by Part 6,
Division 1 of the Immigration and Refugee Protection
Regulations. Section 78 is the section dealing with educational
assessments, the relevant portions of which provide that:
|
78.
(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 master's
or doctoral level and a total of at least 17 years of completed full-time or
full-time equivalent studies.
(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 … paragraph (2)(f), on the basis
of the single educational credential that results in the highest number of
points ...
(4) For the purposes of subsection (2), if a skilled worker has an
educational credential referred to in 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.
|
78. (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 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;
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.
(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 … de l’alinéa (2)f), en
fonction du diplôme qui procure le plus de points selon la grille ...
(4)
Pour l’application du
paragraphe (2), si le travailleur qualifié est titulaire d’un diplôme visé à …
l’alinéa (2)(f) mais n’a pas accumulé le nombre d’années d’études à temps
plein ou l’équivalent temps plein exigé par l’un de ces alinéas ou sous-alinéas,
il obtient le nombre de points correspondant au nombre d’années d’études à
temps plein — ou leur équivalent temps plein — mentionné dans ces
dispositions.
|
[12]
The term “Education credential” is defined
in section 73 of the Regulations as meaning “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”.
Analysis
[13]
Subsection 78(3) of the
Regulations provides that points are to be awarded on the basis of the single
educational credential that results in the highest number of points. It is not disputed that the highest educational
credential held by Ms. Bhuiya is her Master’s degree, and that she had
completed 16 years of education prior to obtaining this degree.
[14]
As a result, the provisions of
subsection 78(4) came into play. That is, as Ms. Bhuiya had 16 years of
education leading up to her Master’s degree, rather than the 17 years
contemplated by paragraph 78(2)(f), she was entitled to the number of points
set out in paragraph 78(2)(e), namely 22 points.
[15]
Such an interpretation
of the Regulations is consistent with both the Immigration Manual, and the
policy objectives described in the Regulatory Impact Assessment Statement or “RIAS” relating to the
Regulations.
[16]
Dealing first with the RIAS,
this Court has held that although a RIAS is not a part of Regulations, it is
nonetheless a useful tool in analyzing the legislative intent, as it was
prepared as part of the regulatory process: see, for example, Merck &
Co. v. Canada (Attorney General) (1999),
176 F.T.R. 21 (F.C.T.D.) and Bayer Inc. v. Canada (Attorney
General) (1999),
87 C.P.R. (3d) 293 (F.C.A.).
[17]
In this case, a review of the
RIAS discloses that the reason for requiring that a candidate have both a
particular degree and a specified number of years of education was to
promote consistent standards in the assessment of a candidate’s education and
training, given the range of education and formal training systems around the
world.
[18]
The RIAS uses a Master’s degree
as an example, noting that to qualify for the maximum number of points for a
Master’s the candidate must also have 17 years of education. In other words,
the years of education requirement is clearly intended to establish minimum
standards for each type of degree.
[19]
The fact that Ms. Bhuiya may have spent
one additional year in school after obtaining her Master’s degree does not turn
her 16 year Master’s degree into a 17 year Master’s degree.
[20]
A review of the relevant provisions of the Immigration Manual leads to a similar
conclusion.
[21]
As a consequence, I am satisfied that the
visa officer did not err in her assessment of Ms. Bhuiya’s education. The
application for judicial review is therefore dismissed.
Certification
[22]
Ms. Bhuiya has not proposed a question for certification. The Minister
has suggested that a question may arise in relation to the standard of
review to be applied to the visa officer’s decision, in the event that the
issue of standard of review turned out to be determinative of the outcome of
this case. This is not the case, and no question will be certified.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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