Date:
201306018
Docket:
IMM-6968-12
Citation:
2013 FC 682
Toronto, Ontario,
June 18, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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MOHAMMAD NAEEM AHRAIROODI
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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 of the decision of an officer of
Citizenship and Immigration Canada rejecting the applicant’s application for
permanent residence in Canada in the “federal skilled worker class.”
[2]
The
applicant is a medical doctor from Iran. The narrow issue in this application
is the officer’s assessment of the applicant’s education, and in particular her
decision to award the applicant 22 out of a possible 25 points for having
earned a medical degree and a specialty diploma. For the reasons that follow,
this application is dismissed.
[3]
On
April 23, 2012, the officer assessed the applicant’s application for permanent
residence. No issue is taken with the points she awarded for his age,
experience, arranged employment, official language proficiency, and
adaptability. Education was the sole remaining criterion and worth a maximum
of 25 points, and was to be awarded according to then in-force subsection 78(2)
of the Immigration and Refugee Protection Regulations, SOR/2002-227
[Regulations], the relevant paragraphs of which read as follows:
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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.
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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 :
…
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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[4]
In
his application for permanent residence dated November 9, 2010, under the
heading “What is your highest level of education,” the applicant checked the
box indicating that he had a “PhD.” In the covering letter submitted by an immigration
consultant, on behalf of the applicant, it was similarly stated that the
applicant “achieved his Ph.D. Degree in field of Physiatrist from Shahid
Behesti University of Medical Sciences in 08/2002 and he graduated his MD
Degree from Kerman University of Medical Sciences in 02/1997,” and it was thus
submitted that the applicant ought to receive the maximum of 25 points for his
education.
[5]
However,
in the supporting documents provided by the applicant with his application, the
certificate or diploma from Shahid Behesti University only stated that the
applicant had earned a “Specialty Degree” in the field of “Physical Medicine
and Rehabilitation”.
[6]
The
officer’s notes in the Global Case Management System [GCMS] dated April 23,
2012, show that she awarded the applicant 22 points for his education:
EDUCATION: 22 Based on all information/docs on file,
PA has Degree in Medicine with Specialty in Physical Medicine and
Rehabilitation. Degree and transcripts seen. However, the applicant has
indicated highest level of completed education as a PhD. I am satisfied that
both are considered 1st level degrees – no indication of a
Bachelor’s degree awarded prior. As such, I am awarding 22 points for 2 or
more Bachelor degrees and at least 15 years of study. This is also in line
with OP6 which states 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, they are awarded 20 point. […] Application is therefore
refused. ECP: pls prepare refusal letter and include the following: Your
degrees in Medicine, although professional, under IRPA I am only satisfied that
they are a first level degree at the Bachelor level. As such I have awarded 22
points.”
[7]
A
refusal letter did not issue immediately, however. On the contrary, the
officer and the immigration consultant communicated between April 23, 2012, and
May 10, 2012. The immigration consultant couriered and emailed the following
letter:
May 10, 2012
[…]
Dear Immigration Officer,
I represent Dr. Ahrairoodi in
respect to his application for permanent residence to Canada.
Please find attached confirmation
of Dr. Ahrairoodi’s specialty Degree was a separate degree from his medical
degree.
Thrusting [sic] that the
above are satisfactory and will allow you to continue with the processing of
this application.
[8]
The
attached “confirmation,” a letter from Shahid Behesti University, stated not
that the applicant had received any Ph.D., but rather stated: “This is to
certify that … [the applicant] began the medical program in “Physical and
Rehabilitation” at Shohada Medical, Educational and Treatment Center on
20.11.1999 and after 3 years completed his studies at the level of specialty
diploma on 20.11.2002” [emphasis added].
[9]
On
May 11, 2012, the applicant was sent a refusal letter in line with the
officer’s above-excerpted direction providing these short reasons relating to
his educational points: “Your degrees (General Medicine with Specialty in
Psychiatry [sic]), although professional, I am satisfied that they are a
first level degree at the Bachelor level. As such I have awarded 22 points.”
[10]
The
record also shows that the officer responded to the immigration consultant’s May
10, 2012 email. The response was as follows:
Please be advised that the applicant was in fact
awarded 22 point on account of his clinical specialisation diploma.
Although a bachelor’s degree may be a prerequisite
to the clinical specialisation certificate, the clinical specialisation
certificate is not at the masters level. Instead, there is an academic program
available in Iran that is higher than the clinical specialisation program.
This is in line with the Operational Procedure (OP6) Manual, which states “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.”
The decision to allot 22 points for the specialty
degree stands.
[11]
There
are two issues to be addressed:
1.
Did
the officer err in her interpretation and application of the Regulations with
respect to the applicant’s educational credentials?
2.
Did
the officer err by failing to allow the applicant an opportunity to respond to
her concerns after the applicant had prima facie met the application
requirements?
[12]
A
third issue was raised in that each party objected to affidavit evidence filed
by the other. The applicant filed information regarding the status of his educational
qualifications in Iran, but which was not before the officer. I agree that as
such it is inadmissible. The respondent filed an affidavit by the officer.
The applicant objects to paragraphs 8 and 9 on the basis that the officer is
attempting to expand the reasons given for her decision. I agree, and those
paragraphs are also struck from the record.
Assessment
of the Educational Qualifications
[13]
The
thrust of the applicant’s argument is that the officer erred by failing to
refer to how the “local authority” recognized his credentials. He points to
two documents in his application record which he submits demonstrate how the
local authority in Iran recognizes his degrees and therefore impugn the
officer’s decision. The first has been ruled inadmissible as it was not
submitted by the applicant in his application, was not reviewed by the officer,
and is not in the certified tribunal record. The second document is “a letter
submitted by the Applicant with his application for permanent residence [which]
indicated that he ranked first among his classmates at the Kerman University of
Medical Science and was signed by the "Registrar & Director General
of Postgraduate Studies" [emphasis added].
[14]
I
agree with the respondent that this document does not show that the officer’s
decision was unreasonable. It is irrelevant that the author of the letter is
an official of “Postgraduate Studies.” Absent proof that the institution does
not provide any postgraduate studies that do not result in a master’s or Ph.D.
degree, and there is none, nothing can be taken from this letter that was not
already known, namely that the applicant took courses.
[15]
Importantly,
there is no evidence whatsoever in the applicant’s application for permanent
residence or in the certified tribunal record that establishes that he holds a
Ph.D., that the applicant’s medical degree is the equivalent of a master’s
degree, or that the specialization certificate is the equivalent of a Ph.D.
degree.
[16]
This
case is distinguishable from Nikoueian v Canada (Minister of Citizenship and
Immigration), 2013 FC 514, a case advanced by the applicant for the
proposition that an officer must have regard to how the local authorities
recognize an applicant’s educational credentials (a point conceded by the
respondent and set out in OP-6). That is because in Nikoueian, the
applicant’s university certificate expressly stated that she had received a
“Ph.D;” here the applicant’s certificate only indicated that he received a
“diploma.” In other words, the difference here is that Mr. Ahrairoodi’s
materials did not purport that his medical degree is considered a master’s
degree, or that his specialisation program is considered a Ph.D., in Iran.
Procedural
Fairness
[17]
The
applicant submits that the officer erred by failing to put her concerns to him
and allow him an opportunity to respond.
[18]
The
law on procedural fairness in this context was aptly summarized by Justice
Mosley in Hassani v Canada (Minister of Citizenship and Immigration),
2006 FC 1283, at para 24:
[I]t is clear that where a concern arises directly
from the requirements of the legislation or related regulations, a visa officer
will not be under a duty to provide an opportunity for the applicant to address
his or her concerns. Where however the issue is not one that arises in this
context, such a duty may arise. This is often the case where the credibility,
accuracy or genuine nature of information submitted by the applicant in support
of their application is the basis of the visa officer's concern…
[19]
This
case comes squarely within the first scenario described by Justice Mosley in
that the requirement to establish level of education arose directly out of the Regulations.
The applicant simply failed to submit evidence in his application for permanent
residence purporting to establish that his medical degree or diploma are,
respectively, considered a master’s degree and Ph.D. in Iran.
[20]
Furthermore,
the applicant did submit additional evidence to the officer regarding his
education in and around the time the decision was being made and the officer
considered but rejected it as establishing that he held a master’s degree or
Ph.D. This additional opportunity was not required by the duty of fairness in
the circumstances. The applicant’s complaint that he has been denied fairness
is without merit.
[21]
There
is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application is dismissed and no
question is certified.
"Russel W.
Zinn"
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