Date:
20130307
Docket:
IMM-5441-12
Citation:
2013 FC 244
Ottawa, Ontario,
March 7, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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KHATEREH MAHOURI
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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 subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision by an
Immigration Officer [the officer] refusing the applicant’s application for
permanent residence under the federal skilled worker class. The decision, dated
March 16, 2012, was based on the officer's finding that Ms. Khatereh Mahouri
[the applicant] did not meet the minimum point requirement to qualify for immigration
to Canada.
I. Background
[2]
The
applicant is a citizen of Iran. She applied for permanent residence under the
skilled worker class with the intended occupation of a university professor on
March 13, 2010.
[3]
The
applicant stated in Schedule 1 of her application that the Shiraz University of
Medical Sciences issued her a “Doctorate Degree of Medicine” after eight years
of study and that she was also issued a “specialty degree” following three
further years of study at the same university. She submitted her diplomas and
transcripts for both degrees as part of her application [pages 143 and 146 of
the Tribunal Record for the first degree and pages 136 and 138 of the Tribunal
Record for her specialization degree].
[4]
The
applicant’s spouse stated in Schedule 1 of his application that the Shiraz
University of Medical Sciences issued him a “Doctorate of Medical Science”
after seven years of study and that he was also issued a “specialty degree”
following four further years of study. The applicant’s spouse’s diplomas and
his transcript for his medical degree were also included in the application
[pages 176 and 186 of the Tribunal Record for the medical degree and transcript
and page 183 of the Tribunal Record for the specialization degree].
[5]
By
letter dated March 16, 2012, the officer informed the applicant that her
application was refused.
[6]
The
officer assessed the applicant’s points as follows:
Points
assessed Maximum
Age 10 10
Education 22 25
Experience 21 21
Arranged
employment 0 10
Official
language proficiency 9 24
Adaptability 4 10
TOTAL 66 100
[7]
The
officer awarded 22 points for the applicant’s education because she found that
the applicant’s medical degree and specialization degree were both at the
bachelor’s level.
[8]
The
officer also found that the applicant’s spouse’s medical degree and
specialization degree were both at the bachelor’s level. Accordingly, the
officer stated she would award 4 points for the applicant’s spouse’s education
under the adaptability factor.
[9]
The
officer found that the applicant had obtained insufficient points to qualify
for permanent residence in Canada, as the minimum requirement is 67 points. The
officer therefore refused the application.
II. Issues
[10]
The
applicant raised the following issues:
A.
Did
the officer err in finding that the applicant’s and her spouse’s medical
degrees were at the bachelor’s level?
B. Did
the officer breach the duty of procedural fairness by denying the applicant the
opportunity to address her concerns?
III. Standard
of review
[11]
A
visa officer’s exercise of discretion in assessing a permanent residence
application under the skilled worker class is a question of mixed fact and law
and is reviewable on the reasonableness standard (Malik v Canada (Minister
of Citizenship and Immigration), 2009 FC 1283 at para 22; Patel v Canada
(Minister of Citizenship and Immigration)), 2011 FC 571 at para 18 [Patel]).
Accordingly, the Court will consider “the existence of justification,
transparency and intelligibility within the decision-making process” and
“whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47).
[12]
The
applicant claims the issue of whether the officer erred by failing to refer to
how the local authority responsible for educational institutions recognizes the
credential is a procedural fairness question. In Lak v Canada (Minister of Citizenship and Immigration), 2007 FC 350 at para 6 [Lak], Justice
Simon Noël held that whether an officer’s reasons were adequate was a question
of procedural fairness, to be reviewed on the correctness standard. However, in
Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at para 14, the Supreme Court of Canada held
that “reasons must be read together with the outcome and serve the purpose of
showing whether the result falls within a range of possible outcomes” and that
the adequacy of reasons is not a stand-alone basis for quashing a decision.
Accordingly, in this case, I find that the adequacy of the officer’s reasons is
to be analyzed along with the reasonableness of the decision as a whole.
[13]
The
question of whether the officer breached the duty of procedural fairness is
subject to the correctness standard (Khosa v Canada (Minister of Citizenship
and Immigration), 2009 SCC 12 at para 43; Patel, above, at para 19).
IV. Analysis
[14]
I
agree with the respondent, as a starting point, that an applicant cannot adduce
new evidence on an application for judicial review and attempt to impugn a
decision of an officer on the basis of such new evidence (Tabanag v Canada
(Minister of Citizenship and Immigration), 2011 FC 1293 at para 14).
[15]
The
applicant had a duty to put her best foot forward by submitting sufficient
evidence at the time she applied for a visa to establish that she met the
requirements of the legislation (Silva v Canada (Minister of Citizenship and
Immigration), 2007 FC 733 at para 20 and Kaur v Canada (Minister of
Citizenship and Immigration), 2010 FC 442 at para 9).
[16]
Moreover,
a visa officer has no obligation to seek to clarify a deficient application (Sharma
v Canada (Minister of Citizenship and Immigration), 2009 FC 786 at para 8; Pan
v Canada (Minister of Citizenship and Immigration), 2010 FC 838 at para
28). I therefore agree with the respondent that the letters from the Medical
Council from Iran and the letter from Shiraz University of Medical Sciences are
inadmissible.
A. Did
the Officer Err in Finding that the Applicant’s and her Spouse’s Medical
Degrees were at the Bachelor’s Level?
[17]
With
respect to the evidence that was before the officer, the officer stated the
following regarding her assessment of the applicant’s education:
In this instance, you received a single degree from
Shiraz University of Medical Sciences which allowed you to practice medicine. There
is no indication that there was a Bachelor’s or Master’s degree awarded prior
to this degree or that the degree was awarded by a faculty of graduate studies.
After completing your single degree, you undertook a specialization in Social
Medicine, as demonstrated by the Medical Specialty certificate on file.
Therefore, you were awarded 22 points for two or more university educational
credentials at the bachelor’s level and at least 15 years of full-time or
full-time equivalent studies.
[Emphasis added]
[18]
Similarly,
the officer stated the following in her analysis of the applicant’s spouse’s
education:
In this instance your spouse received a single degree
from Shiraz University of Medical Sciences which allowed him to practice
medicine. There is no indication that there was a Bachelor’s or Master’s
degree awarded prior to this degree or that the degree was awarded by a faculty
of graduate studies…
[Emphasis added]
[19]
In
Nekooei v Canada (Minister of Citizenship and Immigration), IMM-5704-10,
May 4, 2011 [Nekooei], an Iranian-educated radiologist argued that he
should have been awarded 25 points for education in his federal skilled worker
application because his post-secondary education consisted of a medical degree
from an Iranian university and some post-graduate training, including a
three-year diploma program in radiology. The applicant submitted a letter from
the President of his university stating that the applicant’s medical degree was
equivalent to a master’s degree of higher university credential. The officer
found that this letter did not prove the medical degree would be considered a
master’s degree by local authorities, and Justice Judith Snider concluded that
this finding was “not unreasonable”.
[20]
Similarly,
in the present case, notwithstanding the applicant and her spouse’s degrees stated
that they were both in a “Professional Doctorate Program” and that the
applicant had passed the examinations of her “residency curriculum” in social
medicine, there was no evidence in the file that the “local authorities”
responsible for medical institutions would recognize these credentials as being
at the graduate level.
B. Did the Officer
Breach the Duty of Procedural Fairness by Denying the Applicant the Opportunity to Address her Concerns?
[21]
No
duty exists for visa officers to apprise an applicant of his or her concerns if
these concerns arise directly from the Act or the Immigration and Refugee
Protection Regulations, SOR/2002-227. As Justice Donald Rennie held in Chen
v Canada (Minister of Citizenship and Immigration), 2011 FC 1279 at para
22:
The question whether an applicant has the relevant
experience, training or education and requisite certificates, as required by
the Regulations and thus qualified for the trade or profession in which
he or she claims to be a skilled worker is "...based directly on the
requirements of the legislation and regulations." and falls squarely
within the reasoning of Mosley J. in Hassani. Therefore it was up to the
applicant to submit sufficient evidence on this question and the Visa Officer
was not under a duty to apprise him of his concerns or to conduct more detailed
inquiries to resolve the latent ambiguity: Kaur, paras 9-12. Visa
officers are not expected to engage in a dialogue with the applicant on whether
the Regulations are satisfied.
[22]
Similarly,
in my view the applicant in the present case had the burden to submit
sufficient evidence to show her and her husband’s medical degrees were at the
graduate level, and the officer had no duty to apprise the applicant of her
concerns.
[23]
As
Justice Michel Beaudry stated in Rabiee v Canada (Minister of Citizenship
and Immigration), 2011 FC 824 at para 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).
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The applicant’s
application for judicial review is dismissed.
"Michael D.
Manson"
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