Date:
20130429
Docket:
IMM-8085-12
Citation:
2013 FC 445
Ottawa, Ontario,
this 29th day of April 2013
Present: The
Honourable Mr. Justice Roy
BETWEEN:
SEDIGHI, Seyed Mahdi
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, made pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the “Act”), of the decision of
an immigration officer (the “officer”) at the Canadian Embassy in Warsaw,
Poland, refusing the application for permanent residence in Canada as a Federal
Skilled Worker of Mr. Seyed Mahdi Sedighi (the “applicant”).
Facts and
relevant provisions
[2]
The
facts of this case are simple and it involves a single issue. The applicant
wishes to become a permanent resident of Canada in accordance with subsection
12(2) of the Act, which reads:
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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.
|
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.
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[3]
The
applicant is a physician, trained in Iran, and he must satisfy the requirements
of sections 73 to 85 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the “Regulations”) in order to qualify as a member of an economic
class.
[4]
The
decision made by the officer was to deny the application. He did so in
application of sections 76 and 78 of the Regulations and, in particular, he
assessed the applicant as being entitled to 66 points out of the required
67 points in order to qualify. The applicant challenges the assessment made by
the officer by claiming that the officer was wrong in allowing 22 points out of
a maximum of 25 points on account of education.
[5]
Subparagraph
76(1)(a)(i) of the Regulations reads, in part, as follows:
|
76.
(1) For the purpose of determining whether a skilled worker, as a member of
the federal skill worker class, will be able to become economically
established in Canada, they must be assessed on the basis of the following
criteria:
(a) the skilled worker must be
awarded not less than the minimum number of required points referred to in
subsection (2) on the basis of the following factors, namely,
(i) education, in
accordance with section 78,
|
76. (1) Les critères
ci-après indiquent que le travailleur qualifié peut réussir son établissement
économique au Canada à titre de membre de la catégorie des travailleurs
qualifiés (fédéral) :
a) le travailleur
qualifié accumule le nombre minimum de points visé au paragraphe (2), au
titre des facteurs suivants :
(i)
les études, aux termes de l’article 78,
|
As subparagraph 76(1)(a)(i)
announces, one of the criteria to be considered is the education of the
applicant, to be assessed in accordance with section 78. Subsection 78(2) reads
as follows:
|
78.
(2) A
maximum of 25 points shall be awarded for a skilled worker’s education
as follows:
(a) 5 points
for a secondary school educational credential;
(b) 12 points
for a one-year post-secondary educational credential, other than a university
educational credential, and a total of at least 12 years of completed
full-time or full-time equivalent studies;
(c) 15 points
for
(i) a
one-year post-secondary educational credential, other than a university
educational credential, and a total of at least 13 years of completed
full-time or full-time equivalent studies, or
(ii) a
one-year university educational credential at the bachelor’s level and a
total of at least 13 years of completed full-time or full-time
equivalent studies;
(d) 20 points
for
(i) a
two-year post-secondary educational credential, other than a university
educational credential, and a total of at least 14 years of completed
full-time or full-time equivalent studies, or
(ii) a
two-year university educational credential at the bachelor’s level and a
total of at least 14 years of completed full-time or full-time
equivalent studies;
(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.
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78. (2) Un maximum de
25 points d’appréciation sont attribués pour les études du travailleur
qualifié selon la grille suivante :
a) 5 points, s’il a
obtenu un diplôme d’études secondaires;
b) 12 points, s’il
a obtenu un diplôme postsecondaire — autre qu’un diplôme universitaire —
nécessitant une année d’études et a accumulé un total d’au moins douze années
d’études à temps plein complètes ou l’équivalent temps plein;
c) 15 points, si,
selon le cas :
(i) il
a obtenu un diplôme postsecondaire — autre qu’un diplôme universitaire —
nécessitant une année d’études et a accumulé un total de treize années
d’études à temps plein complètes ou l’équivalent temps plein,
(ii) il
a obtenu un diplôme universitaire de premier cycle nécessitant une année
d’études et a accumulé un total d’au moins treize années d’études à temps
plein complètes ou l’équivalent temps plein;
d) 20 points, si,
selon le cas :
(i) il
a obtenu un diplôme postsecondaire — autre qu’un diplôme universitaire —
nécessitant deux années d’études et a accumulé un total de quatorze années
d’études à temps plein complètes ou l’équivalent temps plein,
(ii) il
a obtenu un diplôme universitaire de premier cycle nécessitant deux années
d’études et a accumulé un total d’au moins quatorze années d’études à temps
plein complètes ou l’équivalent temps plein;
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.
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Standard of review
[6]
In
the memorandum of fact and law submitted by the applicant, he does not address
the standard of review applicable in these matters. He rather states, quite
elliptically, that “issues of reasonability are to be controlled on a standard
of reasonability whereas issues of equity are to be controlled upon a standard
of correctness”.
[7]
We
are here considering the application of facts to legal standards found in
regulations. Questions of mixed fact and law have been consistently found to be
reviewable on a standard of reasonableness. This case is no different. As is
well known, such a standard is deferential in principle. To quote from Dunsmuir
v New Brunswick, [2008] 1 S.C.R. 190 at paragraph 47:
.
. . In judicial review, reasonableness is concerned mostly with the existence
of justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[8]
Accordingly,
the Court will not substitute its view of the matter to that of the officer but
will rather consider if the conclusion falls within the range of acceptable
outcomes. The reasons given are to be “read together with the outcome and serve
the purpose of showing whether the result falls within a range of possible
outcomes” (Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), [2011] 3 S.C.R. 708 at para 14).
Analysis
[9]
It
must be taken that, in view of the standard of review applicable to these types
of cases, the applicant is arguing that it was not reasonable for the officer
to conclude that, as a physician in Iran, he was entitled to less than 25
points on account of his education.
[10]
The
applicant argues, forcefully, that he qualifies under paragraph (f) of
subsection 78(2). The officer slated the education of the applicant as fitting
within paragraph (e). The reasons given by the officer are as follows:
I
note that this applicant has indicated that the highest level of completed
education is a PhD degree. The OP 6 indicates that: “Medical doctor degrees are
generally first-level university credentials, in the same way that a Bachelor
of Law or a Bachelor of Science in Pharmacology is a first level, albeit “professional”
degree and should be awarded 20 points. If it is a second-level degree and if,
for example, it belongs to a Faculty of Graduate Studies, 25 points may be
awarded. 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.”
In
this instance, the applicant received a single degree which allowed to practice
medicine. There is no indication that there was a Bachelor’s awarded prior to
this degree or that the degree was awarded by a faculty of graduate studies.
After completing a single degree, the applicant undertook a specialization and
appears to have been performing the duties related to it.
In
light of above, I am awarding 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.
[11]
The
question for the Court is whether or not that decision of the officer was
reasonable in the circumstances. The burden was on the applicant to satisfy the
Court, on a balance of probabilities, that it is unreasonable. With great
respect, such a demonstration has not been made.
[12]
The
applicant relies on his statement that he has received a PhD in medicine and
then takes issue with the officer’s finding that the degree is a first-level
university credential. The applicant’s position boils down to arguing that 7 ½
years of university studies must qualify as a PhD or at least a Master’s
degree.
[13]
The
evidence showed that following primary school and secondary school studies, the
applicant was awarded a “medical diploma” and a certificate of completion of
“doctoral” studies. The applicant sought to supplement the record before this
Court by introducing an affidavit in support of some internet research about
medical diplomas issued in Iran. The respondent objected to such evidence being
introduced at this stage.
[14]
It
is trite law that a judicial review application must be with respect to the
decision made and the record before the reviewing court must be that which was
before the decision-maker (Isomi v Minister of Citizenship and Immigration,
2006 FC 1394 and case law referred to therein; Montesuma v Minister of
Citizenship and Immigration, 2011 FC 918; Tabanag v Minister of
Citizenship and Immigration, 2011 FC 1293; Mahouri v Minister of
Citizenship and Immigration, 2013 FC 244). The Court does not substitute
its view to that of the decision-maker: allowing new evidence at this stage
could only be for the purpose of weighing again the evidence once supplemented.
This cannot be allowed. The new evidence will not be considered as it is ruled
inadmissible.
[15]
It
was for the applicant to show that the university educational credential he
obtained was at the master’s or doctoral level, in order to benefit from
paragraph 78(2)(f) of the Regulations. His contention that, somehow, the
officer had an obligation to inform himself of the requirements for a medical
degree in Iran is without merit. The burden is not transferred on the shoulders
of the decision-maker; it remains that of the applicant throughout. The
applicant raised one ingenuous argument, based on one word in paragraph 78(2)(f):
“level”. He contends that the use of the word “level” in conjunction with
“master’s or doctoral” suggests that it is not a particular degree that is
required, but a diploma at the equivalent “level”. Unfortunately for the
ingenuous argument of the applicant, it is not conversant with the French
version of the same paragraph, which makes it quite clear that the degree
required is one of a second or third cycle of studies. As is well known, courts
will seek to find the common meaning between bilingual versions and that shared
meaning will be accepted (Merck Frosst Canada Ltd v Canada (Health), [2012] 1 SCR 23). In view of the evidence before the officer, it
was not unreasonable to conclude as he did that the degree is not of the
master’s or doctoral level.
[16]
This
Court, very recently, was confronted to the same situation and the same
argument with respect to a “Doctorate of Medical Science” obtained following
eight years of study in Iran (indeed, the record also showed that the
applicant’s spouse had a medical degree obtained after seven years of study).
Justice Michael Manson, in Mahouri, supra, also concluded
that the applicant did not discharge his burden. The decision-maker reviewed
the evidence and concluded reasonably that a simple degree allowing for the
practice of medicine constitutes a first-level degree. The applicant in this
case did not discharge either his burden before this Court to show that the
finding was not reasonable.
[17]
As
a result, the application for judicial review is dismissed. The parties did not
submit that a question ought to be certified pursuant to section 74 of the Act,
and none arises.
JUDGMENT
The application for
judicial review of the decision of an immigration officer at the Embassy of
Canada in Warsaw, Poland, rendered on June 19, 2012, is dismissed.
“Yvan Roy”
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