Date: 20130801
Docket: IMM-8703-12
Citation:
2013 FC 835
Montréal, Quebec,
August 1, 2013
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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MOHAMMAD MAHABUBUR RAHMAN
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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
I. Introduction
[1]
Mr.
Mohammad Mahabubur Rahman’s application for permanent residence as a member of
the economic class [application] was refused by an Immigration Officer who did
not find that he had the ability to become economically established in Canada
in application of subsection 12(2) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA], as he obtained 62 points out of the 67 required.
[2]
The
Applicant seeks judicial review of that decision, arguing that: (i) the
selection criteria for the federal skilled worker [FSW] class under subsections
75(1) and 76(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations] entitled him to a greater number of points with
respect to education and work experience; (ii) the Officer did not give him a
fair opportunity to contradict the outcome of a fraud investigation that was
not properly disclosed to him; and (iii) the Officer should have conducted a
substituted evaluation under subsection 76(3) of the Regulations since the
number of points awarded to him was not a sufficient indicator of his ability
to become economically established in Canada.
II. Background
[3]
The
Applicant is a 36-year-old citizen of Bangladesh. He gave evidence of the
following educational credentials: (i) a Secondary School Certificate [SSC]
from the Board of Intermediate and Secondary Education of Dhaka, dated July 31,
1993; (ii) a Higher Secondary Certificate [HSC] from the Board of Intermediate
and Secondary Education of Dhaka, dated July 1995; (iii) a Bachelor of Science
from the National University of Bangladesh; (iv) a Master of Science in
Mathematics from the National University of Bangladesh; (v) a Dental Office and
Chairside Assistant diploma from CDI College, dated November 3, 2006; and (vi)
a Business Administration in International Trading diploma from Evergreen
College, dated November 2008.
[4]
According
to the Applicant’s transcripts, the duration of his Bachelor of Science and
Master of Science degrees was 3 years and 1 year, respectively. His application
stated that his Bachelor of Science was a 4-year degree and that the duration
of the pre-university SSC and HSC programs was 12 years, for a total of 16
years.
[5]
The
Applicant worked as a mathematics instructor at Polygon English Academy [Polygon], part-time from January 22, 2000 to May 2002, and full-time from May 2, 2002
to May 2004. As proof of employment, he presented documents allegedly issued by
the Bangladesh Income Tax Office and by Polygon. Offers of employment from
Polygon, dated January 25, 2000 and April 25, 2002, state that the Applicant
was required to work 26 hours per week as a part-time instructor and 40 hours
per week as a full-time instructor.
[6]
In
August 2004, the Applicant came to Canada on successive study permits and made
his application on November 12, 2008.
[7]
On
May 9, 2010, the High Commission of Canada in Dhaka found that the Applicant’s
tax documents were fraudulent because: (i) they were issued and signed on
January 27, 2010, by an employee who left his position at the tax office on
February 24, 2009; (ii) he was not a taxpayer in Bangladesh or was not issued a
taxpayer number until January 28, 2010; and (iii) the wet seal on the income
tax documents did not match the wet seal used by Bangladesh tax authorities.
[8]
On
May 9, 2010, an agent of the High Commission went to Polygon to confirm the
Applicant’s work experience. He learned that, before 2005, Polygon was a
coaching centre, not an educational institution.
[9]
As
a result of that investigation, the Officer notified the Applicant that his tax
documents and employer’s documents were fraudulent. On May 23, 2012, the
Applicant, through his counsel, sought clarification as the “letter [did] not
make it clear to [him] exactly what information has been verified, when, by
whom and by what means, and what exactly (what part of the information or
documents) is deemed to be ‘fraudulent’ ”.
[10]
The
Applicant also provided a letter from Polygon confirming his work experience as
a part-time instructor from January 2000 to May 2002 and as a full-time
instructor from May 2002 to May 2004.
[11]
The
agent of the High Commission made a second site visit to Polygon, who confirmed
that prior to 2005, Polygon was a coaching centre and not a school.
III. Decision under Review
[12]
The
Officer found that the Applicant could not be selected under subsection 12(2)
of the IRPA because the selection criteria in subsection 76(1) of the
Regulations did not entitle him to the minimum number of points required for
FSWs. The Officer assessed the Applicant under NOC 4131: College and Other
Vocational Instructors National Occupation Classification [NOC 4131 class],
awarding him 62 points under the selection criteria; 10 for age; 22 for
education; 8 for official language proficiency; 17 for work experience; and 5
for adaptability.
[13]
The
Officer awarded the Applicant 22 points for the education factor pursuant to
paragraph 78(2)(e) of the Regulations. According to certificates
provided by the Applicant, the program of study for his Master of Science
degree in Bangladesh only consisted of a total of 16 years of study: 12 years
of pre-university study; 3 years of study for a bachelor’s degree; and 1 year of
study for a master’s degree. Consequently, he was ineligible for 25 points
under paragraph 78(2)(f) of the Regulations, which requires at least 17
years of completed full-time or full-time equivalent studies.
[14]
The
Applicant’s two years of work experience at Polygon from May 2002 to May 2004
merited 17 points for work experience under paragraph 80(1)(b) of the
Regulations. The Officer did not award the Applicant points for his previous
part-time work as he did not provide evidence on the number of hours of work he
completed or indicate that he had performed work at the college or vocational
level. Nor did the Officer award him points for work since 2004 as he did not
provide evidence of other work experience at NOC skill type 0 or skill level A
or B.
[15]
As
the Applicant does not contest the way the other selection criteria were
assessed by the Officer, there is no need to summarize his findings for the
purpose of the present reasons.
IV. Issues
1) Did
the Officer assess the education factor reasonably?
2) Did
the Officer assess the work experience factor reasonably?
3) Did
the Officer breach the duty of procedural fairness?
4) Does
the decision raise a reasonable apprehension of bias?
V. Analysis
Standard of review
[16]
A
visa officer’s assessment of a permanent resident application under the FSW
class involves questions of mixed law and fact that are reviewable on the
reasonableness standard (Mahouri v Canada (Minister of Citizenship and
Immigration), 2013 FC 244, [2013] FCJ No 278 at para 11). The same standard
applies to a decision to exercise the discretion to conduct a substituted
evaluation under subsection 76(3) (Eslamieh v Canada (Minister of
Citizenship and Immigration), 2008 FC 722, [2008] FCJ No 909 [Eslamieh]).
However, whether a decision raises a reasonable apprehension of bias is
assessed on the correctness standard (Azziz v Canada (Minister of
Citizenship and Immigration), 2010 FC 663, [2010] FCJ No 767).
Assessment of the education factor
[17]
The
Applicant argues that he was entitled to additional points for education. In
his view, paragraph 78(2)(f) of the Regulations entitled him to 25
points because he had a university educational credential at the master’s level
and a total of 19 years of completed full-time or full-time equivalent studies.
In the alternative, he asserts that subsection 78(4) of the Regulations
required the Officer to award the same number of points he would be awarded if
he had satisfied both requirements for paragraph 78(2)(f). Citing
McLachlan v Canada, 2009 FC 975, [2009] FCJ No 1183 [McLachlan],
he argues that subsection 78(4) required the Officer to award 25 points for his
master’s degree as if he satisfied the length of study requirement in paragraph
78(2)(f).
[18]
For
the reasons that follow, I am of the opinion that the Officer’s finding that
the Applicant did not establish that he met the duration of study requirement
under paragraph 78(2)(f) is reasonable (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[19]
Subsection
78(4) did not require the Officer to award the Applicant the points he would
have been entitled to as if he had he satisfied the duration of study
requirement. Paragraph 78(2)(f) awards 25 points to applicants who
demonstrate that they have: (i) a university credential at the master’s or
doctoral level; and (ii) a total of at least 17 years of completed full-time or
full-time equivalent studies.
[20]
While
the Applicant has a Master’s degree in mathematics, he did not satisfy the
duration of study requirement. Based on the record, the Officer could
reasonably determine that he had completed only 16 years of full-time or
full-time equivalent studies. First, he consistently stated in his application
materials that he completed 12 years of pre-university studies. Second, while
he stated that his bachelor’s and master’s degrees were completed in 4 years
and 1 year, respectively, the Officer could reasonably rely on his National
University of Bangladesh transcripts, which stated that he completed his
bachelor’s degree in 3 years and his master’s in 1 year. Third, his studies at
CDI College and Evergreen College cannot be included in assessing the duration
of study requirement as the Officer was not permitted to award points for years
of full-time or full-time equivalent studies that did not contribute to his
Master’s degree (Hasan v Canada (Minister of Citizenship and Immigration),
2011 FCA 339, [2011] FCJ No 1729 at para 56 [Hasan]). Since the
Applicant could only demonstrate that he had 16 years of study, he did not meet
the duration of study requirement under paragraph 78(2)(f) of the
Regulations.
[21]
Subsection
78(4) does not assist the Applicant. It provides, when applied to the
Applicant’s situation, that since he has a master’s educational credential
under paragraph 78(2)(f) but not a total of at least 17 years of
full-time or full-time equivalent studies, then the Officer shall award the applicant
the same number of points as the same number of years of completed full-time or
full-time equivalent studies set out in the paragraph or subparagraph.
[22]
The
Applicant cites McLachlan, above, for the proposition that subsection
78(4) required the Officer to award him the same number of points as if he had
satisfied paragraph 78(2)(f).
[23]
In
Hasan, above, the Federal Court of Appeal held that a decision-maker
could reasonably award 22 points under subparagraph 78(2)(e)(ii) of the
Regulations where the applicants had two master’s degrees but “were only
credited with 16 years of full-time studies with respect to their master’s
degree[s]” (at paras 2, 16, 21, and 55). Hasan overruled McLachlan,
concluding that subsection 78(4) did not entitle applicants with educational
credentials who fail to meet the duration of study requirement to the full
point allocation for their educational credential. The Federal Court of Appeal
clearly instructed this Court not to follow McLachlan as it was “wrongly
decided” (at para 50) and “fatally flawed” (at para 52).
Assessment of the work experience factor
[24]
In
terms of assessing the reasonableness of the decision, the issue of the
education points awarded to the Applicant is determinative. In the absence of
an award of further points under paragraph 78(2)(f), the Applicant could
not attain the minimum of 67 points, even if he were entitled to full points
under the work experience factor. Even assuming that the assessment of the
Applicant’s work experience is unreasonable, it could not be determinative of
his application. An unreasonable finding must be determinative in order to be
sufficient to return a decision for redetermination (Lopez v Canada (Minister of Citizenship and Immigration), 2012 FC 1444, [2012] FCJ No 1567 at para
9).
[25]
The
same can be said with respect to the alleged apprehension of bias on the
Officer’s part for not having given the Applicant the opportunity to contradict
the outcome of the investigation report. As it only concerns the Applicant’s
work experience, it has no impact on the Officer’s finding that the Applicant
could only be awarded 22 points for education.
[26]
Consequently,
the Court will not deal with the second and forth issues raised above.
The necessity to conduct a substituted
evaluation
[27]
The
Applicant claims the Officer breached the duty of fairness in not conducting a
substituted evaluation under subsection 76(3) of the Regulations as the number
of points awarded to him was not a sufficient indicator of his ability to
become economically established in Canada. He submits that Jogiat v Canada (Minister of Citizenship and Immigration), 2009 FC 815, [2009] FCJ No 1518
required the Officer to explain why a substituted evaluation was not warranted.
[28]
The
Officer was not required to conduct a substituted evaluation under subsection
76(3). Justice Mosley, in Eslamieh, above at para 4, held that a
decision-maker need not consider a substituted evaluation “unless specifically
requested to do so” (see also Chowdhury v Canada (Minister of Citizenship
and Immigration), 2011 FC 1315, [2011] FCJ No 1605 at para 35). Since the
Applicant did not request the Officer to exercise his discretion pursuant to
subsection 76(3), the decision is not unreasonable on that ground.
VI. Conclusion
[29]
For
all of the foregoing reasons, the Applicant’s application for judicial review
should be dismissed. The parties did not propose any question of general
importance for certification and none arises from this case.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. The application for judicial
review is dismissed;
2. No question of general
importance is certified; and
3. No costs are granted.
“Jocelyne Gagné”
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