Date:
20130627
Docket:
IMM-6805-12
Citation:
2013 FC 722
Ottawa, Ontario,
June 27, 2013
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
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BITA GHAJARIEH
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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, Ms Bita Ghajarieh, seeks judicial review pursuant
to section 72 of the Immigration and Refugee Protection Act, SC 2001, c
27 [the
Act], of the May 16, 2012 decision of an Immigration Officer [the Officer]
at the Canadian Embassy in Warsaw, Poland, which determined that she did not
meet the requirements for permanent resident status in Canada as a Federal
Skilled Worker pursuant to subsection 76(1) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [the Regulations].
Background
[2]
Ms
Ghajarieh is a citizen of Iran who applied for permanent residence as a member
of the Federal Skilled Worker [FSW] class, under National Occupational
Classification [NOC] 1111, Financial Auditors and Accountants. The Officer
assessed her application and attributed 66 points, falling one point below the
minimum 67 point requirement for eligibility in the FSW class.
[3]
In
assessing the application the Officer attributed points for various criteria,
including 20 points for the applicant’s educational qualifications which
recognized one Bachelor’s degree and 14 years of study. The applicant had
submitted in her application that 22 points should be awarded due to her
Bachelor’s Degree in Physics and her Associate Degree Diploma in Financial
Accounting.
The
issues
[4]
The
two determinative issues are the Officer’s assessment of the applicant’s
educational credentials pursuant to subsection 78(2), and the application of
subsection 76(3) of the Regulations which permits an Officer to exercise
discretion to evaluate
the likelihood of the ability of the skilled worker to become economically
established in Canada where the assessment of points is not a
sufficient indicator.
[5]
The
applicant provided evidence that she obtained a Bachelor’s degree in Physics in
1998, which was a five year program, and she had obtained an Associate Degree
Diploma in Financial Accounting in 2008, which was a two year program. The
applicant submits that the courses for the Associate Degree were the same
courses taken by those in a Bachelor Degree program.
[6]
The
applicant submits that the Officer breached procedural fairness by fettering
his discretion in the assessment of the applicant’s educational credentials by
failing to look beyond the title of her second degree to determine its
equivalence as a bachelor’s level degree.
[7]
The
applicant argues that this is an overly rigid approach in light of Citizenship
and Immigration Canada’s [CIC] Operational Manual, OP 6A Federal Skilled
Workers [OP 6A], which states that “Officers should assess programs of
study and award points based on the standards that exist in the country of
study”. The term “bachelor’s level” is not defined in the Act or Regulations,
and therefore the Officer had a duty to look beyond the title of the degree and
assess it according to standards in the country of study.
[8]
The
applicant also submits that the Officer erred in not exercising his discretion
pursuant to subsection 76(3) to substitute the point assessment with an
evaluation of the applicant’s likelihood of becoming economically established
in Canada. The applicant submits that although she did not specifically refer
to subsection 76(3) in her request for a reassessment of the points attributed,
it was implied by the specific wording of the letter submitted by her
representative which began with “in consideration of the above [facts] and in
the name of humanity, we kindly ask that our client be accepted as she will
meet the requirements by obtaining the necessary points once the adjustment is
made…”.
[9]
The
respondent submits that the applicant failed to discharge the onus upon her to
establish her eligibility; she did not provide evidence that her Associate
Degree Diploma in Financial Accounting was equivalent to a Bachelor’s degree or
was at the bachelor’s level and therefore did not provide sufficient evidence
to satisfy the Officer that her educational experience warranted 22 points. It
was reasonable for the Officer to conclude that the applicant had only one
degree at the bachelor’s level.
[10]
With
respect to the issue of the Officer’s duty to consider a substituted evaluation
pursuant to subsection 76(3), the respondent submits that this is an
exceptional discretion that may be exercised where the officer is convinced
that the point system does not adequately reflect the applicant’s ability to
settle in Canada. In the absence of a specific request by the applicant, there
is no requirement for the Officer to consider a substituted evaluation. In this
case, the letter reiterated that the applicant had two degrees and asked only
that the points be re-assessed. It did not request that the officer exercise
the special discretion. Whether or not a request was made, the respondent
submits that, as indicated by the Officer’s reasons, there was no basis on
which to exercise the discretion.
Standard
of review
[11]
The
issue of whether the Officer fettered his discretion is an issue of procedural
fairness and is reviewable on a standard of correctness: Singh v Canada (Minister of Citizenship and Immigration), 2011 FC 813 at para 9. As explained
below, I do not find that the Officer fettered his discretion.
[12]
The
issue is whether the Officer reasonably determined that the applicant had not
met the requirements for eligibility in the FSW class. The Officer is a
specialized decision-maker whose factual findings relating to an applicant’s
eligibility for permanent residence in Canada attract significant deference and
are reviewable on a reasonableness standard: Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 [Dunsmuir] at para 53; Canada (Minister
of Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa] at para
59; Hameed v Canada (Minister of Citizenship and Immigration), 2008 FC
271 at para 22.
[13]
As
noted in Khosa and often cited, the role of the Court is to “determine if the
outcome falls within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, at para.
47). There might be more than one reasonable outcome. However, as
long as the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome” (para 59).
Was the
Officer’s assessment of the applicant’s educational credentials reasonable?
[14]
The
applicant submitted documents to establish that she had a university degree in
Physics from Islamic Azad University, awarded in 1998 after five years of
study. She also indicated that she received an Associate Degree Diploma in
Financial Accounting in 1998 from Scientific Applied Comprehensive University and submitted a document to establish that the diploma had been awarded, as well as
transcripts indicating the courses taken and the marks received.
[15]
Although
the applicant now submits that the Associate Degree Diploma is equivalent to a
bachelor’s degree, that she took the same classes as students enrolled in the
bachelor’s program, and that the only distinction between the two was that her
program was two instead of three years in length, the applicant did not provide
sufficient supporting evidence for the Officer to establish that this degree
was at the bachelor’s level.
[16]
There
is no dispute that the applicant bears the onus to satisfy the Officer that she
meets all the requirements under the Federal Skilled Workers Class and to put
her “best foot forward” to support the point value she had estimated for her
educational credentials (Singh v Canada (Minister of Citizenship and
Immigration), 2007 FC 1356 at para 32; Sharma v
Canada (Minister of Citizenship and Immigration), 2009 FC 786 at
para 8).
There is no requirement for the Officer to seek out other information to
supplement the application, apart from the guidance provided in OP 6A to
consider the credentials in the context of the standards that exist in the
country of study.
[17]
The
applicant takes the position that the Officer fettered his discretion in not
looking beyond the title of her Associate Degree Diploma as he should have done
to determine the applicable points to be attributed to her educational
credentials in accordance subsection 78(2).
[18]
That
subsection provides:
78.
(2) A maximum of 25 points shall be awarded for a skilled worker’s education as
follows:
(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
(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 paragraphs (2)(a) to (d), subparagraph (2)(e)(i) and
paragraph (2)(f), on the basis of the single educational credential that
results in the highest number of points, and
(ii)
for the purposes of subparagraph (2)(e)(ii), on the basis of the combined
educational credentials referred to in that paragraph.
[19]
The
scale recognizes both post-secondary educational credentials that are not
university credentials and university credentials. The applicant proposed that
her two degrees should result in 22 points, relying on paragraph 76(2)(e)(ii).
I note that this paragraph refers only to two or more university credentials at
the bachelor’s level and does not refer to the length of the course of study as
does paragraph 76(2)(d)(ii) which requires a two-year university credential at
the bachelor’s level. I considered the applicant’s argument that the different
wording permits a different interpretation, however, in my view, the paragraphs
must be read together. Paragraph 76(2)(d)(ii) requires a two-year university
educational credential. The reference in paragraph 76(2)(e)(i) to two or more
university educational credentials should logically be interpreted to relate
back to those same credentials which refer to a two-year
university educational credential at the bachelor’s level.
[20]
The
applicant has focused on how the term “bachelor’s level” should be interpreted
and whether this has a different meaning from a bachelor’s degree and argues
that the Officer should have looked beyond the title of the diploma in his
assessment.
[21]
I
note, however, that the applicant and respondent both agreed that a credential
means successful completion of the program. The Officer referred to the
definition of educational credentials in the Regulations, which makes it
clear that the program must be completed and a diploma or other credential
awarded.
[22]
Section
73 of the Regulations provides:
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“educational credential” means 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.
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« diplôme » Tout
diplôme, certificat de compétence ou certificat d’apprentissage obtenu
conséquemment à la réussite d’un programme d’études ou d’un cours de
formation offert par un établissement d’enseignement ou de formation reconnu
par les autorités chargées d’enregistrer, d’accréditer, de superviser et de
réglementer de tels établissements dans le pays de délivrance de ce diplôme
ou certificat.
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[23]
Therefore,
the completion of a bachelor’s level program should lead to a bachelor’s
degree.
[24]
While
some applicants may view the points scale as leaving gaps and not addressing
their particular educational credentials, the Officer is obliged to apply the Regulations
as they are. In this case, the applicant was awarded 20 points only. This
reflects her Bachelor’s degree in Physics and nothing more. Her two-year
diploma, even if it were only considered to be a post-secondary non-university
educational credential pursuant to paragraph 78(2)(d)(i), would not result in
additional points.
[25]
The
Officer’s letter in response to the request for a reassessment, which forms
part of the reasons, indicates that he assessed the degree and concluded that
it did not fit within any of the categories of paragraph 78(2):
Altough
[sic] an Associate’s degree is considered as an university degree, it is
not the same as a Bachelor’s Degree. It is not equivalent either
to a college diploma, trade certificate or apprenticeship because it is a
university degree.
As
indicated in R78 (2)e), 22 points should be awarded if an applicant has two or
more university educational credentials at the bachelor’s level and a
total of at least 15 years of studies.
Given
that an Associate’s degree is not at Bachelor’s level, a person with one
Bachelor’s degree and one Associate’s degree would not meet the criteria.
(Emphasis
in the original)
[26]
As
noted by Justice Roy in Sedighi v Canada (Minister of
Citizenship and
Immigration),
2013 FC 445, a case involving the points attributed to the applicant who
asserted he was a doctor:
[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.
[27]
The
comparison between the French and English versions of the provisions does not
clarify the issue in the present case as the bachelor’s level is the “premier
cycle” or first level and both degrees of the applicant are submitted to be at
that same level. However, as in Sedighi, the burden remained on the
applicant to establish that her Associate Degree was at the bachelor’s level
and she did not do so.
[28]
The
Officer did consider the nature of the Associate Degree Diploma and he
concluded that it was not at the bachelor’s level. Although the applicant
suggests that the Officer failed to assess this credential in the context of
the country of study, there is nothing to suggest that the Officer did not do
so.
[29]
The
Officer’s assessment of the points to be attributed to the applicant was based
on the application of the Regulations to the evidence before him. The
decision was intelligible, transparent and justified and was within the range
of possible acceptable outcomes.
Did the Officer
err by not exercising his discretion pursuant to subsection 76(3)?
[30]
Subsection
76(3) of the Regulations provides:
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Whether
or not the skilled worker has been awarded the minimum number of required points
referred to in subsection (2), an officer may substitute for the criteria
set out in paragraph (1)(a) their evaluation of the likelihood of the
ability of the skilled worker to become economically established in Canada if
the number of points awarded is not a sufficient indicator of whether the
skilled worker may become economically established in Canada.
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Si
le nombre de points obtenu par un travailleur qualifié — que celui-ci
obtienne ou non le nombre minimum de points visé au paragraphe (2) — n’est pas
un indicateur suffisant de l’aptitude de ce travailleur qualifié à réussir
son établissement économique au Canada, l’agent peut substituer son
appréciation aux critères prévus à l’alinéa (1)a).
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[31]
The
wording of the provision is clear that the Officer may substitute an assessment
of points for other criteria where the points are insufficient to determine
whether the applicant can integrate economically in Canada, but there is no
requirement to do so.
[32]
The
jurisprudence supports the clear wording of the subsection.
[33]
In Esguerra
v Canada (Minister of Citizenship and Immigration), 2008 FC 413, [2008] FCJ No
549, Justice de
Montigny noted:
16 The
discretion under subsection 76(3) of the IRPR is clearly exceptional and applies only in cases where the
points awarded are not a sufficient indicator of whether the skilled worker
will become economically established. The fact that the applicant or even this
court would have weighed the factors differently is not a sufficient ground for
judicial review.
[34]
In Budhooram
v Canada (Minister of Citizenship and Immigration) 2009 FC 18, [2009] FCJ No 46 [Budhooram], Justice Lagacé made similar comments:
14 The
discretion under subsection 76(3) of the Regulations is clearly exceptional to
cases where the points awarded are not a sufficient indicator of whether the
skilled worker will become economically established. This decision is entitled
to deference and the fact that that the applicant or the Court would have
weighed the factors differently is not a ground for judicial review (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, paras. 34-39; Poblano v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1424, 2005 FC 1167, paras. 4-5, 8).
[35]
In Nehme
v Canada (Minister of Citizenship and Immigration), 2004 FC 64, [2004]
FCJ 49, Justice MacKay found that an officer is under no obligation to consider
a substituted evaluation and if this discretion is not exercised, the applicant
is left with the application of subsection 75(3) if the eligibility
requirements are not met:
25 In
the written submissions provided subsequent to the hearing, the applicant
raises yet another new issue and argues that the visa officer should be
directed to consider, pursuant to s-s 76(3) of the Immigration and Refugee
Protection Regulations ("IRPA Regs."), the likelihood of her ability
to become economically established in Canada despite her failure to obtain the
required points required for acceptance as a permanent resident in the skilled
worker class. In my view, this section gives the visa officer the discretion to
consider likelihood of an applicant's ability to become economically
established in Canada, but the visa officer is not bound to do so, particularly
where no request for such consideration is made with the application. The
discretion vested under that provision is for the visa officer, and there is no
basis for the Court to order that it be exercised. Thus, unless such
exceptional discretion is exercised by the visa officer, the applicant is
subject to s-s. 75(3) of the IRPA Regs, which states that the failure to meet
the requirements for acceptance as a permanent resident dispenses with any
necessity for the visa officer to make any further assessment.
[36]
While an
officer has discretion to conduct a substituted evaluation on his own
initiative, in the absence of a request by the applicant pursuant to subsection
76(3), the officer is not required to do so. As Justice Mosley noted in Eslamieh
v Canada (Minister of Citizenship and Immigration) 2008 FC 722, [2008] FCJ No
909:
4 Visa
Officers have the authority to consider an alternative evaluation under
subsection 76(3) by their own motion, as held by my colleague Justice Carolyn
Layden-Stevenson in Zheng
v. Canada (Minister of Citizenship and Immigration), 2002 FTR 1115, 26
Imm. L.R. (3d) 72. That said, it is clear from the jurisprudence that they are
under no obligation to exercise that discretion unless specifically requested
to do so. The applicant concedes that she did not make such a request and I
cannot therefore find that the Visa Officer was unreasonable in her decision.
[37]
In
the present case, the applicant made no request for a substituted evaluation.
The letter sent by the applicant dated May 15, 2012 asked only for a reassessment
of the points awarded but did not request a substituted evaluation pursuant to
subsection 76(3) of the Regulations. It is not possible to interpret the
phrase included in the letter, “…in the name of humanity, we kindly ask that
our client be accepted as she will meet the requirements by obtaining the
necessary points once the adjustment is made”, as a “request” pursuant to
subsection 76(3) given that the content of the request is focussed on the
re-assessment of points for the Associate degree. The expression, “in the name
of humanity”, appears to be a customary term.
[38]
The
Officer’s decision indicates:
“You
have not obtained sufficient points to satisfy me that you will be able to
become economically established in Canada. I am satisfied that the points
awarded and the information provided accurately reflect your ability to become
economically established in Canada.”
[39]
As
noted by the respondent, the Officer concluded that the points did reflect the
ability – or the lack of ability – to become established. Therefore, even if
there was an implicit request to consider a substituted evaluation, the Officer
found that it would not be warranted because he was satisfied that the points
were an accurate measure of the applicant’s ability to become economically
established, hence subsection 76(3) would not apply.
[40]
In Budhooram (at
paragraph 31), Justice Lagacé addressed a similarly worded decision and noted:
There
is no requirement under the regulations, guidelines or jurisprudence that visa
officers give reasons for the refusal to exercise discretion. It is clear
however from the CAIPS notes forming part of the file that the Officer was not
satisfied that the points were an inaccurate reflection of the applicant’s
ability to become established.
Conclusion
[41]
Although
the points attributed to the applicant fell short of the required minimum by
only one point, the applicant had the onus to establish to the satisfaction of
the Officer that her educational credentials justified a higher point value and
she did not meet that onus. The Officer’s assessment was reasonable. The
Officer was not required to conduct a substituted evaluation even if an
explicit request had been made to do so, but which had not been made in this
case. Moreover, the Officer’s reasons indicate that there was no basis to
consider a substituted evaluation.
[42]
As
a result, I would dismiss the application for judicial review. No question was
proposed for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The application for
judicial review is dismissed;
2. No question is
certified
"Catherine M.
Kane"
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