Date:
20130522
Docket:
IMM-4470-12
Citation:
2013 FC 533
Ottawa, Ontario,
May 22, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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MOHAMMADSADEGH
MOHAGHEGHZADEH
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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]
The
applicant and his wife seek to come to Canada under the Federal Skilled Worker
(FSW) program.
The Visa Officer awarded the applicant 66 points, one short of the required 67,
in accordance with sections 76 to 83 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (Regulations).
[2]
The
applicant received full points for his education. His wife, who has a six year
degree in dental medicine and is licensed to practice in Iran, was awarded four out of a possible five points within the adaptability category. The
Visa Officer determined that four points were appropriate, relying on
Citizenship and Immigration Canada (CIC) operations manual, OP 6A, which states
that medical degrees are generally considered first-level, rather than graduate
level, credentials.
[3]
The
applicant challenges this decision on the basis that the Damascus visa office
had been awarding a full five points for medical and dental degrees. His
application, however, was transferred from Damascus to Warsaw, due to the
availability of resources. He submits that this resulted in a breach of
procedural fairness as he had a legitimate expectation that the practice in Damascus would continue and apply to the assessment of his application.
[4]
In
support of this argument, the applicant tendered an email dated May 3, 2012,
from a CIC analyst who explained that the visa office in Damascus had been
awarding full points for medical and dental degrees until the summer of 2010,
but that the practice had subsequently been standardized in accordance with OP
6A. The applicant buttresses this with the language of OP 1, which addresses
the procedure to be followed when a visa application is transferred from one
post to another. Section 5.19 provides:
For assessment purposes, visa
offices receiving a transferred file must respect the original date on which
the application was received as the “lock-in” date. For processing purposes,
all processing steps for the files transferred to an office, including the
scheduling of interviews, should be the same as for all other applications
received in the office on the date corresponding to the “lock-in” date of the
received file. This means that an application that is received in Paris in July 2002 and transferred to New Delhi in March 2003, would enter the New Delhi queue as of July 2002.
[5]
The
respondent also provided additional affidavit evidence. Julia Gurr Lacasse, an
immigration officer who had been transferred from the Damascus office to the
Warsaw office in January 2012, explained that since the fall of 2009 the
Damascus visa office had been awarding points for Iranian medical degrees in
accordance with OP 6A.
Admissibility of Evidence
[6]
The
first issue to be considered is the admissibility of the affidavit evidence.
On judicial review, additional evidence may only be admitted to address issues
of procedural fairness and jurisdiction. The merits of the decision are
reviewed on the basis of the material that was before the decision maker: Tabañag
v Canada (Citizenship and Immigration), 2011 FC 1293, para 14.
[7]
The
affidavit of Julia Gurr Lacasse is admissible as it responds to the procedural
fairness issue alone and does not seek to supplement the decision.
[8]
The
applicant has also provided an affidavit attaching various exhibits, including
a letter from the Shiraz University of Medical Sciences. This evidence is
intended to address the merits of the decision and was not before the Visa
Officer. Therefore, it cannot be relied on at this stage to bolster the
application. The email from a CIC analyst is admissible as, like the
affidavit of Julia Gurr Lacasse, it relates to the question of procedural
fairness.
Legitimate Expectations
[9]
To
establish a legitimate expectation the applicant must show that CIC made
“clear, unambiguous and unqualified” representations regarding what process
would be followed: Canada (Attorney General) v Mavi, 2011 SCC 30, para
68. Legitimate expectations can only pertain to the process, not a specific
outcome: Mount Sinai Hospital Center v Quebec (Minister of Health
and Social Services), 2001 SCC 41, para 35.
[10]
CIC
did not make the unambiguous representations required to sustain a plea of
legitimate expectations. Section 10.2 of OP 6A provides that medical and
dental degrees will generally be considered first-level degrees absent evidence
to the contrary:
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. It is important to refer to how the local
authority responsible for educational institutions recognizes the credential:
i.e., as a first-level or second-level or higher university credential.
[11]
There
are two components to the applicant’s argument that he had a legitimate
expectation that his wife’s dentistry degree would be evaluated as a
second-level degree. The first is based on the respondent’s own guidance in OP
1 5.19 as to lock-in dates. The second is based on the practice of the Damascus office.
[12]
OP
1 5.19 does not constitute a representation as to how a file will be assessed.
It is simply a guarantee that visa applicants do not lose their place in the
queue on transfer. It is not a guarantee that an application would be “locked
in” to a certain set of practices or criteria prevailing at the time in the
embassy or consulate where the application was received. The applicant’s
argument amounts to a substantive right to a certain outcome, namely that the
degree would be considered a second-level degree, resulting in five points
rather than four.
[13]
Turning
to the second prong of the applicant’s argument, the practice in Damascus of treating medical degrees as second-level degrees does not support a plea of
legitimate expectations. In my view, this argument falls squarely with the
language of Justice Eleanor Dawson, then of this Court, in Yoon v Canada (Citizenship and Immigration), 2009 FC 359, at paragraph 20:
Ms. Yoon's argument cannot
succeed. No legitimate expectation can exist that is contrary to express
provisions of the Regulations. Further, in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2
S.C.R. 817, at paragraph 26, the Supreme Court of Canada confirmed that
"the doctrine of legitimate expectations cannot lead to substantive rights
outside the procedural domain." What Ms. Yoon seeks is the conferral of a
substantive, not a procedural, right. This cannot be obtained pursuant to the
doctrine of legitimate expectations.
Reasonableness of the
Decision
[14]
The
applicant’s second argument relates to the merits of the decision.
[15]
There
is some question as to the appropriate standard of review for this issue. In Khan
v Canada (Citizenship and Immigration), 2011 FCA 339, the Federal Court of
Appeal provided that “the standard of review to be applied to a visa officer’s
decision is correctness”. In that appeal, the issue was the visa officer’s
interpretation of subsections 78(2) and (3) of the Regulations.
Since then, the Supreme Court of Canada has provided that a tribunal’s
interpretation of its home statute or a statute closely connected to its
function is presumptively entitled to deference: Alberta (Information
and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at
paras 30-34.
[16]
As
Justice Mary Gleason observed in Qin v Canada (Citizenship and Immigration),
2013 FC 147, Khan could be interpreted as mandating a correctness
standard of review for all aspects of a visa officer’s decision, including
questions of mixed fact and law. However, I agree with Justice Gleason’s
conclusion that, properly understood, Khan provides that correctness is
the standard of review for matters of statutory interpretation only.
Reasonableness is the standard of review for questions of mixed fact and law,
the issue for the present application.
[17]
Reasonableness,
it is well known, contemplates a
range of possible, acceptable outcomes which are defensible in respect of the
facts and the law. That certain visa officers
may have, for a period of time, considered Iranian dental degrees to be at the
graduate level does not narrow the range of reasonably acceptable outcomes or
fetter their discretion for subsequent decisions. Each visa officer is
empowered to make an independent assessment of an application. There is no
requirement for uniformity. In each case the decision is assessed against the
legal framework and the principles of administrative law.
[18]
Here,
there was no evidence before the Visa Officer to support a conclusion that the
dentistry degree was a second-level university degree or was issued by a
faculty of graduate studies. Therefore, the Visa Officer’s decision survives
scrutiny on either the reasonableness or correctness standard.
[19]
While
the letter from the Shiraz University of Medical Sciences is inadmissible, it
does not in any event, advance the applicant’s position. The letter states
that the “Dental Medicine Doctor Degree is accredited as an M.S. Degree for
admission to a PhD program.” It does not address whether it is a graduate
degree or was issued by a graduate studies faculty. As Justice Judith Snider
observed in Sirous Nekooei v Canada (Citizenship and Immigration),
May 4, 2011 (IMM-5704-10), the definition of “educational credential” in
section 73 of the Regulations requires that the degree or diploma be
recognized by the authorities responsible for supervision and regulation of
such institutions in the country of issue. The author of that letter, as Head
of Admissions, is unlikely to be an accrediting body as contemplated by the Regulations.
[20]
Other
judges of this Court have found decisions reasonable where there was no
evidence that the professional degree was a second-level or graduate degree.
In Mahouri v Canada (Citizenship and Immigration), 2013 FC 244 Justice
Michael Manson upheld a refusal of a visa officer to issue a visa where the
applicant held a Doctorate Degree of Medicine from Shiraz University of Medical
Sciences after eight years of study and ‘specialty’ degree following three
further years of study at the same university. The applicant’s spouse had
seven years of study and a “Doctorate of Medical Science” followed by a
“specialty” degree involving four additional years of study. The officer in
that case found that both degrees were at the bachelors level. Similarly, in Rabiee
v Canada (Minister of Citizenship and Immigration), 2011 FC 824, Justice
Michel Beaudry concluded that a medical degree may reasonably be considered a
first-level degree in the absence of clear evidence showing that it qualifies
as graduate studies.
Requirement for a Fairness Letter
[21]
There
was no need for the Visa Officer to provide a fairness letter to the applicant
as he bears the onus to establish that he meets the criteria for entry. The
question as to whether an applicant has the relevant experience, training or
education and requisite certificates as required by the Regulations is
based directly on the requirements of the legislation. It is therefore up to
the applicant to provide sufficient evidence to prove that he meets all of the
pre-requisites: Chen v Canada (Citizenship and Immigration), 2011 FC
1279, para 22.
[22]
Therefore,
I would dismiss this application for judicial review.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. There is no question for certification.
"Donald J.
Rennie"
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