Date: 20110203
Docket: A-149-10
Citation: 2011 FCA 40
CORAM: NOËL
J.A.
PELLETIER J.A.
TRUDEL
J.A.
BETWEEN:
MINISTER OF
CITIZENSHIP AND IMMIGRATION
Appellant
and
ZAFAR SHAHID
Respondent
REASONS FOR
JUDGMENT
NOËL J.A.
[1]
This
is an appeal by the Minister of Citizenship and Immigration (the Minister)
against a decision of O’Reilly J. of the Federal Court (the Applications Judge)
wherein he granted the application for judicial review brought by Mr. Zafar
Shahid (the respondent) against a decision of an immigration officer denying his
application for permanent residency as a skilled worker.
[2]
Subsection
12(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
provides that a foreign national may be selected for permanent residency as a
member of the economic class on the basis of his ability to become economically
established in Canada. The Immigration and Refugee Protection
Regulations, SOR/2002-227 (the IRPR) set out the applicable criteria for a
Federal Skilled Worker Class as follows (subsection 75(1)) :
|
… persons who are skilled workers and who may
become permanent residents on the basis of their ability to become
economically established in Canada and who intend to reside in a province
other than the Province of Quebec.
|
[…] personnes qui peuvent
devenir résidents permanents du fait de leur capacité à réussir leur
établissement économique au Canada, qui sont des travailleurs qualifiés et
qui cherchent à s’établir dans une province autre que le Québec.
|
[3]
In
order to determine whether a skilled worker will be able to become economically
established in Canada, the IRPR identify various criteria with which a specific
number of points is associated; an applicant must be awarded a minimum of 67
points to qualify for the Federal Skilled Worker Class.
[4]
In
the present case, the respondent was awarded 63 points. The immigration officer
did not award any points under the adaptability criteria for the respondent’s
spouse’s educational credentials. The respondent claims that he should have
been awarded the 4 available points, which would have given him the minimum
requirement of 67 points, because his spouse meets the educational requirement
of the IRPR.
[5]
The
Applications Judge agreed and quashed the decision of the immigration officer
on the basis that his refusal to award the 4 points was unreasonable.
THE RELEVANT PROVISIONS OF THE IRPR
[6]
In
order for the respondent to be entitled to the 4 points, his spouse had to meet
the requirements set out in subparagraph 78(2)(d)(ii) of the IRPR:
|
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;
|
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;
|
[7]
The
expression “educational credential” is defined in section 73 as follows :
|
“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.
|
« 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.
|
[8]
The
term “studies” is defined in section 1 as follows :
|
“studies” means studies
undertaken at a university or college, or any course of academic, professional
or vocational training.
|
« études » Études
dans une université ou un collège ou cours de formation générale, théorique
ou professionnelle.
|
[9]
Finally,
the definitions of “full-time” and “full-time equivalent” are set out in
subsection 78(1) of the IRPR:
|
The definitions in this
subsection apply in this section.
“full-time” means, in
relation to a program of study leading to an educational credential, at least
15 hours of instruction per week during the academic year, including any
period of training in the workplace that forms part of the course of
instruction.
“full-time equivalent”
means, in respect of part-time or accelerated studies, the period that would
have been required to complete those studies on a full-time basis.
|
Les définitions qui suivent
s’appliquent au présent article.
« équivalent temps
plein » Par rapport à tel nombre d’années d’études à temps plein, le
nombre d’années d’études à temps partiel ou d’études accélérées qui auraient
été nécessaires pour compléter des études équivalentes.
« temps plein » À
l’égard d’un programme d’études qui conduit à l’obtention d’un diplôme,
correspond à quinze heures de cours par semaine pendant l’année scolaire, et
comprend toute période de formation donnée en milieu de travail et faisant partie
du programme.
|
[10]
The
outcome of this appeal essentially turns on the meaning which is to be
attributed to these last two definitions.
THE DECISION UNDER APPEAL
[11]
The
Applications Judge briefly alluded to the education system in Pakistan. He noted that “external
candidates” can obtain a degree without attending classes on a full-time or
part-time basis (Reasons at para. 8). In this respect, the evidence shows that external
candidates are “not required to attend classes, complete any assigned readings
or hand in assignments; [they] simply [have] to write an exam in each subject
studied”. The requirements to write an examination as an external candidate
are: (i) register for a scheduled examination session; (ii) complete the
appropriate form; and (iii) pay the required fees. Once enrolled for an
examination, the external candidate can prepare through independent studies or
with the assistance of a private tutor (Affidavit of the immigration officer,
Appeal Book at p. 584, paras. 4 and 5).
[12]
One
way of distinguishing an “external candidate” from a “regular” student is
through their respective marks sheet. A regular student’s marks sheet states, inter
alia, the program and year in which the examinations were written, the
particular school at which the studies were undertaken and the overall result. In
contrast, an external candidate’s marks sheet identifies the student as such without
any indication of a school or affiliated college (Ibid. at p. 585,
paras. 6 and 7).
[13]
The
Applications Judge rendered his decision on the basis that the respondent’s
spouse was an external candidate. He noted that it was clear that she did not
meet the definition of “full-time” as she did not provide evidence that she
attended classes for 15 hours a week. However, even if she had not achieved 14
years of “full-time studies”, the officer had to consider whether she
nevertheless met the definition of “full-time equivalent studies”. According to
the Applications Judge, the “full-time equivalent” requirement can be met
whether the respondent’s spouse studied on her own or followed a formal course
(Reasons at para. 9):
… Even if
she studied elsewhere, or on her own, whether part-time or on an accelerated
basis, it seems to me she could meet the definition of “full-time equivalent”
if she proved that the degree she obtained would ordinarily take 14 years of
full-time study to obtain. Here, the evidence showed that she took exams over
the course of two years and obtained a degree that ordinarily takes two years
of full-time study to achieve. And she provided proof of twelve years of
full-time study preceding her university credential. …
[14]
Applying
this reasoning, the Applications Judge held that the decision of the
immigration officer was unreasonable because the evidence established that the
respondent’s spouse successfully completed exams and obtained a degree that
ordinarily takes two years of full-time study to obtain (Reasons at paras. 7
and 9). As such, the respondent was entitled to the 4 points. The Applications
Judge therefore allowed the application for judicial review and referred the
matter to a different immigration officer with instructions that it be
reconsidered in accordance with the regulatory requirements as he construed
them.
[15]
The
Applications Judge certified the following question of general importance:
Does the definition of
“full-time equivalent” in [subsection] 78(2) of the [IRPR] merely require an
assessment of the period of time that would have been needed to achieve a
particular educational credential on a full-time basis, or does it also require
a consideration of the nature and quantity of instruction the individual
receives?
POSITION OF THE PARTIES
[16]
The
appellant submits that the Applications Judge erred in holding that the
definition of “full-time equivalent” applied on the facts of this case. The
appellant submits that in order for this definition to apply, the respondent
had to provide evidence that his spouse studied at an educational institution
for a long period on a part-time basis or that she studied for a shorter more
intense period to complete her studies. According to its wording, the
definition has no other application.
[17]
It
follows that the Applications Judge could not rely on this definition in order
to find that the spouse’s diploma counted towards the 14 years of study she
needed to complete before the respondent could be awarded the 4 points for her
education.
[18]
The
respondent for his part takes the position that the Applications Judge properly
construed and applied the notion of “full-time equivalent”. According to the
respondent “full-time equivalent” includes “independent study” as well as
“part-time studies” and the Applications Judge properly applied this definition
on the facts of this case.
[19]
In
the alternative, the respondent submits that his spouse did in fact attend
courses and complete assignments at Sir Syed College – an affiliate of the University of Karachi – in order to obtain
her educational credential. In support of this submission the respondent points
to his spouse’s marks sheet, which clearly states that she took Islamic studies
and education studies and mentions “Paper I” in each case. According to the
respondent, it is reasonable to infer from this that the respondent’s spouse
completed both “coursework” and exams as she had to perform various assignments
in order to obtain her credential (Memorandum of the respondent at para. 23).
ANALYSIS AND DECISION
[20]
Dealing
first with this last issue, I note that the Applications Judge did not accept
that the respondent’s spouse followed courses at a recognized educational
institution or performed assignments, as he rendered his decision on the basis
that she was an external candidate. I can detect no error in this regard.
[21]
The
mention of the word “paper” on the spouse’s marks sheet does not necessarily mean
that she performed assignments or did “coursework” as the respondent suggests.
The word can also mean “a set of questions to be answered … in an examination”
(Canadian Oxford Dictionary, 2nd Edition, Oxford University Press,
2004). Counsel was unable to demonstrate why the word “paper” on the marks
sheet should be construed as she suggests.
[22]
Furthermore,
when the spouse’s marks sheet is compared to that of the respondent who
attended courses at the National Government College, one notes that, in
contrast to her husband, she is labelled as an external candidate and no
mention is made as to any institution she might have attended.
[23]
The
respondent also relied on a letter from the Registry of the University of Karachi dated
January 2nd, 2008 which certifies that the degree obtained by the respondent’s
spouse in 1985 “is equivalent to university degree of two years and 14 years of
full-time education/studies”.
[24]
I do
not believe that this letter can be of assistance to the respondent as it is
apparent that it was framed so as to opine on the very issue that is to be
decided in the present case.
[25]
The
central issue in this appeal turns on the interpretation of the definition of
“full-time equivalent”. This is a pure question of statutory construction which
stands to be decided on a standard of correctness. In ascertaining the meaning
and effect of this definition, the Court must bear in mind that (Rizzo &
Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para.21):
…, the
words of an Act are to be read in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament.
[26]
It
is common ground that the definition of “full-time equivalent” applies to those
who obtain an educational credential through “part-time or accelerated
studies”. The question is whether the definition also extends to those who successfully
complete their studies on their own through what the parties have described as
“self-study” or what I believe is more appropriately described as “independent
study”.
[27]
The
Applications Judge answered this question in the affirmative. He held that the
definition applies regardless of the manner in which the degree is obtained
(Reasons at para. 9).
[28]
On
the face of it, the definition of “full-time equivalent” is restricted to
persons engaged in “part-time or accelerated studies”. It simply provides that
such persons will, upon obtaining an “educational credential” (i.e. a
university degree in this case), be credited with the number of hours of
instruction that would have been required to obtain the same degree on a
full-time basis. When, as is the case here, a university degree is involved,
the term ”studies” is defined as those “undertaken at a university” (see the
definition of “studies” quoted at para. 8, above).
[29]
Thus
for example, a person who engages in part-time studies and obtains a university
degree after two years of studies, in circumstances where the same degree can
be obtained on a full-time basis after one year, will be credited with having
been engaged in a program of study of “at least 15 hours of instruction per
week” during a single year. Conversely, a person who engages in accelerated
studies and obtains a university degree after one year of studies, in
circumstances where the same degree is obtained on a full-time basis over the
course of two years, is credited with having been engaged in a program of study
of “at least 15 hours of instruction per week” over two years.
[30]
The
net result is that a person who obtains a degree through “part-time or
accelerated studies” is deemed to have studied the equivalent number of hours
as someone who obtained the same degree on a full-time basis. Significantly, no
other form of equivalency is created by the definition.
[31]
The
construction given by the Applications Judge ignores this limitation. There is in
this case no discrepancy in terms of time studied as, based on his own finding,
the respondent’s spouse took two years to obtain a degree that ordinarily takes
two years of full-time study to achieve (Reasons at para. 9). It follows that
there were no hours to equate. The equivalence identified by the Applications Judge
goes to the mode or manner of studies rather than the time required to complete
them. The definition does not operate this way.
[32]
Beyond
this, the interpretation which the Applications Judge proposes does not take
into account the defined meaning of the word “studies” which, in the case of a
university degree means those “undertaken at a university”. Nor does it
take into account the definition of “educational credential” in section 73 (see
para. 7 above) which means “diploma, degree or trade or apprenticeship
credential issued on the completion of a program of study … at an
educational or training institution recognized by the authorities …”. Based
on the Applications Judge’s reasoning, the definition of “full-time equivalent”
would apply whether or not these requirements are met.
[33]
On a
correct construction of the definition of “full-time equivalent”, the
respondent’s spouse failed to meet the two requirements of subparagraph 78(2)(d)(ii)
in that she did not obtain an education credential as defined or achieve 14
years of full-time or full-time equivalent studies. It follows that the
immigration officer came to the proper conclusion and the Applications Judge
erred in intervening.
[34]
I
would therefore allow the appeal, set aside the decision of the Applications
Judge, restore the decision of the immigration officer and answer the certified
question as follows:
The definition of “full-time equivalent”
applies when there is a discrepancy between the time in which a particular “educational
credential” (as defined) is obtained by an individual and the time required to
obtain the same credential on a full-time basis by reason of having followed
part-time or accelerated studies at an educational or training institution
recognized by the authorities. It follows that the definition requires a
consideration of both the nature and quantity of instruction received by the
individual.
“Marc
Noël”
“I
agree
J.D. Denis Pelletier J.A.”
“I
agree
Johanne Trudel J.A.”
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